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My amendment directly supports the Government’s red lines. It is in accordance with views held about the law in other member states. I propose in subsections (3) and (4) of the amendment that we should handle the situation, if it ever arises, in an orderly manner and have the matter referred to an appropriate court. I suppose that that would be the Supreme Court in England and Wales, when it is up and running. I will not venture to say what it would be in Scotland; I see the noble and learned Lord, Lord Mackay of Clashfern, who would no doubt know which would be the best court to handle it. I have not given Northern Ireland any consideration. However, there should simply be a procedure whereby the issue goes to the top court, and rules should be in place, as there are with judicial review, as a filter to chuck out bogus cases.

I apologise for taking so long but this is an important issue which I have never heard debated in this House, although I may have missed something: what do you do if the limits of jurisprudence, the boundaries of the court, are transgressed? I beg to move.

Lord Kingsland: My Lords, I speak to Amendment No. 28, which is not germane to what the noble Lord, Lord Neill of Bladen, has been saying; nevertheless, I must deal with it in this way. I can deal with it telegraphically, largely from a quotation from the Constitution Committee report of 28 March.

First, however, as to Amendment No. 27, on 29 April—the second Committee day of the Bill—we tabled an amendment about the charter. That led to a long, but nevertheless informative, debate. Our point was not so much about the flagrant breach of the protocol as a consequence of a European Court of Justice decision, but the much more insidious danger of European Court of Justice interpretations of measures which were already applicable in this country, made as a result of litigation in other member states, changing the law here.

The noble Lord, Lord Neill of Bladen, poses a serious problem and his solution is attractive. However, it would be a remarkably bold judgment, even by the European court, to breach so flagrantly the terms of the protocol, which expressly refer to “no further extension rights”. That expression is clear. If the court were in breach of that and extended rights in the

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United Kingdom as a result of interpretations of the charter, then the solution of the noble Lord, Lord Neill, would be—to me, at any rate—a good one. However, I would be surprised if we were ever faced with those circumstances.

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Our problem is a more subtle and insidious one, resulting from the slovenly way in which the Government negotiated this protocol in the course of the treaty negotiations. It is clear that the charter applies in this country unless it is cut down by the terms of the protocol. The flaw of the protocol lies in its preamble, which says that the protocol is expressed to be,

The point was not originally made by me from this Dispatch Box—one would certainly not have expected that anyway—but emerged in the course of the Committee examining the Bill in another place. It rightly pointed out that, in the context of the charter, the interpretation by the European court of measures which apply to all European Community member states, including this country, as a consequence of litigation emerging in other member states, would apply in this country even if they extended the interpretation in such a way that changed the law here. That flows from the way in which the preamble was negotiated. As the committee in another place said, it would have been so much better if, instead of the words,

the protocol was expressed to have effect “notwithstanding”,

The fact that the Government failed to do this means that that those red lines are not watertight.

I hope that the Government accept Amendment No. 28. It requires them simply to undertake a reporting obligation. The Constitution Committee’s report of 19 March rightly reflects what has been said in a number of debates in your Lordships’ House: that probably the most worrying consequence of the treaty of Lisbon is how the scope of the European Court of Justice has widened to cover so many more competences. In effect, the only one likely to be left untouched by the European Court of Justice is that of security and international relations. In particular, the committee points out, whole tracts of justice and home affairs that previously were excluded from the jurisdiction of the court now fall within it. The Constitution Committee’s recommendation is in paragraphs 122 to 124, and I conclude my observations by quoting them. They succinctly make all the points that I would have wanted to make:

The Government, in a speech by the Leader of the House this afternoon, have expressed their intense interest in deepening the scrutiny of European matters. Why on earth should this not be seen as a further constructive contribution to that process of deepening and will the Government please accept this amendment?

Lord Owen: My Lords, I support both amendments but I hope that the Official Opposition will not push their Amendment No. 28 to the vote but will support a vote on the extremely interesting and important amendment tabled by the noble Lords, Lord Neill of Bladen and Lord Waddington.

I notice that the former Attorney-General is in his place. I had not before read the very interesting speech that he made on 15 January 2008. In dealing with the charter, he summed up the Government’s position. I totally agree with him but his words are very important. He said:

I believe that is a serious and valid objective. It has been a very important decision to make the European Court of Human Rights charter justiciable in this House. I would have liked to have done it in 1978 when an attempt was made inside the Labour Cabinet. Despite a lot of alarmist predictions, it has withstood pretty well the passage of time.

It is rather selfish of us to deny those new states in the European Community which may not have been involved in the European Convention on Human Rights for very long, or not at all in rather more cases, their own home-grown fundamental rights. I do not cower from the fact of introducing fundamental human rights but I think the points made by the noble Lord, Lord Neill of Bladen, are extremely important. We know that there are people who want to replace the European Convention on Human Rights with the charter of fundamental rights and there are people who want to expand the wording. We therefore do need safeguards. The interpretation put on the speech of the noble and learned Lord, Lord Goldsmith, is a fair one. I am sure he will leap to his feet if he thinks there has been any misinterpretation of his words. He made it perfectly clear that he thought there would be no change in the protocol, a point which was also made by the spokesman for the Official Opposition. This is not good enough. We have an opportunity here to make sure that there are no changes. We know that there are serious people out there who have anxieties about this treaty.

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I would like to take up a little more time of the House on the other aspect of this amendment that deals with the common foreign and security policy. Here I call in aid a very interesting memorandum by Professor Takis Tridimas of Queen Mary, University of London, to the Sixth Report on the European Union (Amendment) Bill of the House of Lords Constitution Committee. In that evidence he says:

We have heard that very often in this debate.

In my view it is quite likely that that is the area where we must focus our attention. He goes on to say:

There is again here a potential loophole and the amendment tabled by the noble Lord, Lord Neill of Bladen, closes that loophole as far as it is possible to do so.

I have already pointed out that the other loophole is that the activities of the new President of the European Council will come under the jurisdiction of the European Court of Justice. Since the bulk of the activity of the President of the European Council deals with common foreign and security policy, particularly in areas where it may link into terrorism, it is in that area that some of us feel that there needs to be some restriction on the authority and the legality and its follow-through for the president of the Council. This new post is unfettered other than by the Council Members. If the European Court of Justice was to use this as another lever, that possibility would be closed and limited by Amendment No. 27. I hope the House takes the opportunity of having this on the statute book. As far as the Government are concerned, it seems to me the very minimum of a belts-and-braces safeguard.

Lord Waddington: My Lords, the noble Lord, Lord Neill of Bladen, very helpfully went into a great deal of detail. In support of his amendment, I would like to try and refine the issues. In essence they are quite simple. The Government wish to limit the jurisdiction of the European Court when it comes to the charter of fundamental rights and to exclude it entirely in the area of foreign and security policy. They say that the protocol and the opt-out are necessary in Britain’s interests but plenty of very knowledgeable people have said that neither the protocol nor the opt-out is watertight. I am not going to rehearse in detail what has been said by the Commons committee, Open Europe and other bodies, but I would remind your Lordships that the EU Committee of this House says at paragraph 5 of its report:

You can say that again.

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It is also interesting to note that paragraph 7.40 of the impact assessment records:

The relevant passage in the evidence is C39, and it is plain from that evidence that Open Europe is not alone in taking that view. So the question arises of what happens if the European Court determines that the protection Britain thought she had won, and the protection that the other member states thought they had given Britain, simply does not exist. Some in this place seem to say that there is only one answer, “Bad luck Britain. The court is supreme and master of its own jurisdiction. Sorry, Britain, but the court has concluded that you were sold a pup”. The noble and learned Lord, Lord Slynn, even went so far as to say:

The use of the word “regional” slightly grated with me. It is hardly encouraging and throws light on the cast of mind of some engaged in the European project, but I shall pass over that. The point is that those remarks made by the noble and learned Lord, Lord Slynn, were a prelude to his conjuring up a picture of chaos which he thought would result if each country’s court could place its own interpretation on European law. But where is the risk of chaos when we are not talking of every country claiming the right to disagree with the Court’s interpretation of a law properly passed but about what is to happen when the Court claims jurisdiction in an area where every country has decided at the time of ratification of the treaty that it has no business in that area?

Judging by his speech on 15 January, the noble and learned Lord, Lord Goldsmith, does not seem to think that if the European Court was to conjure up new rights under our charter, our courts would have to apply them. Therefore, this amendment is designed to make plain that if the European Court of Justice tries to bite into the protection from its jurisdiction which the treaties have tried to afford, and which every member state has agreed to, a court in this country can rule that any such judgment or opinion will not be binding in the United Kingdom. It is really a matter of belt and braces and a reinforcement of the protection the Government say is necessary, the protection which the Government have tried to procure through the protocol and the opt-out. How on earth can that be bad?

I shall not repeat what the noble Lord, Lord Neill of Bladen, said about Poland and Germany except to pose the question: why should the United Kingdom not assert in the same way as Germany and Poland have done that it has the right to judge whether the ECJ has gone beyond the four corners of the treaties? I am happy to support the noble Lord’s amendment.

Lord Goodhart: My Lords, I shall speak against Amendments Nos. 27 and 28. There are always questions of the interpretation of statutes at all levels from the international, such as the EU, down to local authority powers. However, we cannot legislate here in the

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expectation that the European Court of Justice may become entirely irrational or deliberately misinterpret EU legislation or EU treaties. As those who listened to the remarkable speech of the noble and learned Lord, Lord Slynn, on 29 April during the second day of the Committee stage will have appreciated, this really is not the case. The ECJ will not become irrational, nor will it deliberately misinterpret EU legislation in order to extend its own powers. We cannot, and must not, legislate on that basis.

Amendment No. 27 seeks to introduce a new clause, subsections (1) and (2) of which simply restate, accurately enough, the relevant provisions of the Lisbon treaty. Subsection (1) relates to the jurisdiction of the European Court of Justice over the common foreign and security policy, the CFSP. Subsection (2) relates to the jurisdiction of the ECJ in relation to the Charter of Fundamental Rights. It seems that these provisions are intended to apply only if a case has been decided by the European Court of Justice to the disapproval of those in this country who take a different view. The amendment has technical defects. First, it is not clear whether the jurisdiction under the new clause can be exercised only if an issue has been raised in a hearing before the European Court of Justice about the extent of its powers, or whether it can be raised under subsection (3), even if no jurisdictional issue was raised before and decided by the ECJ. Secondly, it is not clear who can raise the issue in the United Kingdom or how they can raise it.

However, even without these defects, which no doubt would be capable of being cured, the amendment is much more deeply and fundamentally unsatisfactory. It is a basic rule of a legal system that a court decides on the extent of its own jurisdiction in accordance with the rules and laid down by statute and precedent. That decision is binding unless it is reversed on appeal by a higher court. It is plain that no court in the United Kingdom is a higher court than the ECJ. On ECJ matters, it is obviously the other way round. That is why, for example, if a serious question of European law arises in a case before the House of Lords or a lower court in the United Kingdom, that question must be referred to the ECJ for decision. That decision binds all the courts in this country, including the House of Lords, or the Supreme Court, as it will soon become.

The reasons for this are obvious. Only the ECJ can give a decision which is binding on all the member states. Any decision by the House of Lords will be binding only in this country. A similar situation applies as regards any decision by the courts of any country from Cyprus to Portugal. An impossible situation would arise if 27 national supreme courts could give a different interpretation to EU treaties. That is plainly obvious as regards decisions on the CFSP covered by subsection (1) of the amendment. We cannot have different meanings attributed to the CFSP by different states. At first sight this may be less obvious in relation to subsection (2) of the amendment, which repeats Article 1, paragraph 1, of the protocol, which applies only to the United Kingdom and Poland. However, the question here is: what does Article 1, paragraph 1, mean? It is a negative provision which states that the powers of the ECJ are not to be extended. Therefore,

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we have to start with a decision by the ECJ that has not extended its powers, either actually or by implication, and that the decision is being challenged in proceedings in the United Kingdom. If the United Kingdom court has power to decide that the ECJ has exceeded its powers, and that the decision of the ECJ must be ignored, one is allowing an inferior court to override a superior court. That is not relevant just to what happens in the United Kingdom. A decision on what are the existing powers of the ECJ taken by the ECJ itself will affect all EU member states.

The preamble to the charter says that it reaffirms rights; it does not say, and we all agreed on this, that it extends them. Any decision by the United Kingdom court that the ECJ had extended its powers would involve the interpretation of what those powers are not only in relation to the United Kingdom but in relation to all states, subject to the charter. That must be a decision for the ECJ and not for the United Kingdom court because if it is the other way around, we end up in the same position, that the supreme court in each independent state within the EU can decide the existing powers of the ECJ.

The motive behind this amendment seems to be the belief that the ECJ will consciously use its powers to reduce the powers of the UK courts and to increase those of the ECJ by means of decisions which are plainly inconsistent with its powers under the EU treaties. That should—although I doubt if it will—put to rest what I regard as the essentially paranoid views of some opponents of the Bill about the way in which the ECJ works. It is not an organisation which will deliberately set out to impose its own views on the EU as a whole. It can, and surely will, as it has in the past, operate on the basis of a proper, serious and thought-out view, assisted by the Advocate General who is a figure of considerable power, about the questions that come before it.

I now turn to Amendment No. 28. This amendment is considerably less harmful—

Lord Pearson of Rannoch: My Lords, before the noble Lord turns to Amendment No. 28, would he not admit that the British Government have been very surprised on several occasions over what they regarded as the judicial activism of the Luxembourg court? I give him, for instance, the occasion when the British Government thought they had signed the Maastricht treaty and were not part of social policy, and the court turned around and agreed that social policy was part of health and safety at work so we got the 48-hour week.

There is also the use of Article 308 of the treaty of Rome, which the court has decided does not have to be in the course of the operation of the Common Market as it should be, but very much wider. There are many examples of this, so perhaps we are not so mad to be worried about it.

Lord Goodhart: My Lords, I am aware of the case in which the ECJ, somewhat to the surprise of the British Government, applied health and safety rules in order to impose legislation on this country. That is certainly true. However, I am in no way saying that that decision was in any way irrational. It seemed to

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me to be a perfectly rational decision. It was unexpected by the Government—perhaps they did not receive proper advice from their legal advisers at the time.

However, there are, of course, varied circumstances. Anybody who has any practice in front of a court is well aware that decisions will be taken which they believe are wrong. That does not mean there is anything improper about that or anything that can, or should, be guarded against. The ECJ is no more perfect in its decisions than the House of Lords in this country, for instance. But that is an entirely different matter and it does not undermine the idea that member states of the EU should accept decisions whether they like them or not.

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