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5.45 pm

Lord Neill of Bladen moved Amendment No. 27:

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(a) the Treaty on European Union signed at Maastricht on 7th February 1992 (as amended by the Treaty of Lisbon), and(b) the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon).”

The noble Lord said: My Lords, in Committee the other day I supported the noble Lord, Lord Waddington, on an amendment that was broadly drawn but which reminded the House of the powers of this Parliament. It was criticised for rather lacking focus, but it gave me a chance to refer to how some other member states handle problems concerned with the scope of the powers of the institutions of the Union. Today, I have a sharp focus by concentrating on two powers to be denied to the European Court of Justice by, in one case, the treaty—no jurisdiction in relation to the common foreign and security policy, subject to specified exceptions—and, in the other case, by the Charter of Fundamental Rights, backed up by a specially created protocol saying that the rights referred to in the charter cannot be used to strike down legislation and practices in the United Kingdom. I do not need to give noble Lords the references because they know where they are—in the treaty in the first case and in the protocol in the second. My amendment tracks the language of those two treaty provisions. I say that because the protocol is declared to have the same force as any provision in the treaty.

The noble Lord, Lord Dykes, is no longer in his place, but the focus that I want to start with begins with him. On 9 December last year, he put a question to the Minister for Europe, Mr Jim Murphy, which is set out in the report of the European Union Committee, in the second volume of evidence on page S73—I see that the noble Lord, Lord Grenfell, is not with us, either. To strip the question down, it was, “Are you

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content with the actual text in the treaty as laid down about the expansion of the Court’s functions?”. Mr Murphy answered:

I pause at this point to draw attention to the fact that our European committee picks up that passage and quotes part of it in the first volume of the report, at paragraph 4.155 on page 75:

In answer to the noble Lord, Lord Dykes, at question 280, the Minister for Europe told the Select Committee that the other significant area where the jurisdiction of the European Court of Justice was dealt with,

In my amendment, I focus rightly or wrongly on the two provisions about the exclusion of jurisdiction on which the Government had the strongest views. That is quite clear from the Minister’s oral evidence.

The noble Lord, Lord Grenfell, who was in the chair, proceeded to put his own questions. First, he asked,

Secondly, he asked whether the Minister would,

The essence of the answer from the Minister was:

I shall return to the word “legally”. He said:

Then, in answer to the noble Lord, Lord Grenfell, he said:

I move on from what the Minister told the committee and take the House to a speech that the noble and learned Lord, Lord Goldsmith, made in January at the British Institute of International and Comparative Law. I declare an interest. I have been a member for

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some time. I think I am probably on the council. The last chairman was the noble and learned Lord, Lord Goff of Chieveley, and I think that I am right in saying that the current president or chairman is the noble and learned Lord, Lord Bingham of Cornhill. Academically, it is an extremely distinguished body. The attention of the House is drawn to this lecture because it is specifically referred to in paragraph 5.102 of the Select Committee’s report, where the reference is given. The paper was given on 15 January this year. The typical audience would have been judges, law dons, professors, barristers, solicitors and law students.

The noble and learned Lord, Lord Goldsmith, said that he had been involved with the charter since 1999. He had been asked by the then Prime Minister to be one of the draftsmen drawing up the charter and this list of rights. He said that that was a taxing job, which took much longer than he thought. The aim of drawing it up was visibility. The draftsmen were not then thinking of it in terms of it being a legally binding document. They wanted the various rights, which were scattered in conventions and other odd places where we were party to provisions that accorded rights, to be collected together in one place. However, no new rights were to be “minted”—that was the word used by the noble and learned Lord.

After a year and a half, the Council, the Commission and Parliament “solemnly proclaimed” the charter as a political text—no legal status then. Time rolls on a little and we come to the constitutional treaty and the Lisbon treaty, when there was a move to give legal status to the charter. The Government insisted that the horizontal clauses should be strengthened. That was agreed and was done, but something more was needed for specific application to the UK. The noble and learned Lord, Lord Goldsmith, said in his lecture:

Notwithstanding all this care to create safeguards and notwithstanding the existence of the belt and braces, is it conceivable that the jurisdiction of the ECJ could trespass into the forbidden zone? Could there be what Mr Jim Murphy, the Minister for Europe, called a “competence creep” in the jurisprudence of the European Court of Justice?

I come back to Mr Jim Murphy being questioned by the noble Lord, Lord Grenfell. At question 284 on page S75, the noble Lord said:

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In response, Mr Murphy said:

The noble Lord, Lord Grenfell, said:

The noble Lord, Lord Kerr of Kinlochard, who is not in his place any more, intervened to say that the version of the charter rights that the European Court of Justice had been citing did not contain the horizontal clauses. I rather think that he meant that the charter rights did not contain the clauses in the form in which we now have them, as they have been in since 2000. In his opinion, the protocol was unnecessary and he said that there was no reason to fear what he called,

However, we know as a fact that the Government did not act on that view. They thought that the protocol was necessary and persuaded the other member states to sign up to it.

Let us suppose that the unexpected or the remote happens and that the European Court of Justice, at some time in the future, uses an interpretation of the charter that it has adopted to strike down rights in United Kingdom legislation. It may be difficult for your Lordships even to think about that, but suppose that there were some creep into this area. What would happen? The best guide to that is the advice that we have from the lecture given by the noble and learned Lord, Lord Goldsmith. I am now turning to the end of it; I have got to page 24. The earlier part is narrative; it is about the part that he played and how he was concerned with the original drafting, then with the protocol and with the horizontal clauses. Then he has this heading in his lecture: “What if the Charter is used to create/extend rights?”. He said:

I hope that your Lordships appreciate that. He continued:

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The noble and learned Lord is clearly saying that, if the unforeseeable, very remote, actually happened, such a judgment—this is how I interpret it, although noble Lords can place their own interpretation on the words—by the ECJ, adopting what he calls an “exorbitant” interpretation, would not be binding.

6 pm

Lord Lea of Crondall: My Lords, the noble Lord refers to exorbitant interpretations by the European Court of Justice. Would he not agree with the reply given to me a week ago by the noble and learned Lord, Lord Slynn, that if the Council of Ministers and the Parliament thought a policy interpretation by the European Court of Justice was not what it had meant, they would be able to change it? The noble and learned Lord added that that was the way that the procedure would work; there was no question of running amok. That was how it worked when he was president. We live in a democracy. That is what would happen with regard to the European Court of Justice. It happened in Britain with the Taff Vale judgement and the Trade Disputes Act 1906. Reversing it takes exactly the same logic. Does the noble Lord not accept that?

Lord Neill of Bladen:The noble and learned Lord, Lord Slynn, is here, my Lords, and he can respond. My experience would be that, once the court has given a judgment, it does not go back to its debating room and say it has made a mistake. There have been cases where it has looked again at a judgment but that is very rare. I do not think the Taff Vale case would be as good a precedent as the noble Lord supposes. I think that he mentioned that the other day.

The Minister is telling us that the European Court of Justice cannot rely on the charter. He refers to the protocol being invoked then and says that we are very clear legally as to where we are. He also said that there was a legal answer if the European Court of Justice moved into this unexpected territory. One is, perhaps, entitled to infer that the Minister knew something of the views of the noble and learned Lord, Lord Goldsmith; the noble and learned Lord is now with us, so we may have the benefit of his comments on this topic.

The idea of having different decisions in different parts of the EU, the variable geometry, is clearly contemplated in what the noble and learned Lord, Lord Goldsmith, was saying. May I give the legal argument, as I see it, as to why the UK would not be bound by a judgment of the European Court of Justice if rendered outside its jurisdiction? By the treaties, there is a transfer of competence to the Union within defined limits. That can be found in the EU treaty in the consolidated volume at articles 4.1 and 5.1 Here we have an express provision that jurisdiction is not conferred—it is a negative—as regards CFSP. We also have a bar on using the charter to create new rights or extending existing rights. That is the combined effect of the horizontal provisions and the protocol.

Under Article 19.1 of the EU treaty, the ECJ is bound to ensure that in the interpretation and application of the treaties the law is observed. Part of the law is

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the agreement on member states recorded in the treaties which clearly state that there is no jurisdiction in these two areas.

In my speech the other day I referred to Germany and Denmark; I will not weary your Lordships with repetitions but will give the reference and the key sentence. I referred to the Brunner case in Germany and the Rasmussen case in Denmark. I quoted from the last sentence of the Brunner judgment:

In Germany, the supreme constitutional court reserves the right to look at instruments and see whether they—

Lord Bach: My Lords, I am sorry to interrupt the noble Lord’s important speech, but I need to remind the House of the conventions in debates—which are what we consider this to be for these purposes. There are no formal time limits. Members opening or winding-up from either side are expected to keep within 20 minutes. I know the noble Lord had an interruption, but I wonder if he could begin to bring his remarks to an end.

Lord Neill of Bladen: They are coming to an end, my Lords. I thank the Minister for his prompt.

Regarding the Rasmussen case, Denmark’s top constitutional court said,

That is the Danish court saying that it will review.

I think I might be allowed to say something about Poland because I was cut short on the last occasion, unless the noble Baroness, Lady Ashton, is unwilling to permit that. The source is quite interesting. All this material is elementary; it is in a student textbook by Professor Trevor Hartley, who is a professor of international—

Baroness Ashton of Upholland: My Lords, I just want to be clear that it is not within my gift to give permission or to withhold it from any noble Lord. However, if the noble Lord will look at the expression on the faces of noble Lords around the House, he will see a desire—

A noble Lord: No!

Baroness Ashton of Upholland:In that case, my Lords, I withdraw the remark. The noble Lord will have to make his own judgment, but we need to continue the debate as quickly as possible.

Lord Neill of Bladen: My Lords, I shall make my citation as quickly as possible. I was cut short last time at exactly the same point when the noble Baroness said, “Stop when you get to Poland”.

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The source is in the sixth edition of Professor Hartley’s book on European Union law. It is a reference to a website with summarised translations of the Polish judgments, so you do not get the ipsissima verba and thankfully the judgments are in English. The principal reasons for the ruling they gave in a case where Danish parliamentary deputies challenged accession to the EU treaty were as follows:

I will not read any more, but it says the same thing about the Court of Justice. It can only operate within the limits, and the court in Poland can review it to see if the limits have been adhered to.

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