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I return to Amendment No. 28. It is less harmful than Amendment No. 27, but no more useful. The requirement is to lay before Parliament a report setting out the text of ECJ judgments on provisions of the treaty of Lisbon. It does not really deal with the problem that the noble Lord, Lord Kingsland, raised at the beginning of his speech.

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The reports and decisions of the ECJ would of course be available, without the necessity for a report by the Government, to anyone who wanted to read them. The amendment requires that the report will also contain an assessment of the impact of decisions on the United Kingdom. The United Kingdom is already awash with impact assessments from several different sources. Those who want to believe the Government will do so; those who do not want to believe them will not. The Government may well wish to lay an impact assessment before Parliament, but it is surely a waste of time and money to require that at annual intervals. The amendment ignores the ability of the EU Committee of your Lordships’ House and other Select Committees to carry out their own investigations which may be more highly regarded than something produced by the Government.

Further, the amendment ignores one important fact which is that the treaty of Lisbon will, in effect, cease to exist the moment it comes into force because it consists entirely of amendments to existing treaties. The elements of the Lisbon treaty and of earlier treaties will, therefore, be merged. There are some aspects, such as the Charter of Fundamental Rights, which are plainly introduced by the Lisbon treaty. But in many cases, it will be difficult, if not impossible, to decide whether an ECJ judgment is a judgment on amendments introduced by the Lisbon treaty, and civil servants will have to waste time considering that.

The amendment goes further still and requires judgments of the European Court of Human Rights which affect provisions of the Lisbon treaty—not the treaty as a whole—to be set out in the report alongside the judgments of the ECJ. I cannot imagine what useful purpose could be served by putting that provision in the Bill.

I cannot believe that the noble Lords whose names are on this amendment take it particularly seriously. It seems to be one which serves no useful purpose and should not be taken any further.

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Lord Blackwell: My Lords, I would like to speak briefly in favour of both these amendments which follow on from some issues raised in an amendment I tabled in Committee. In particular, I will address the issue raised in relation to the Charter of Fundamental Rights. Article 1 of that charter offers the protection that the charter cannot be used to extend the ability of the ECJ to find that laws and regulations of the UK are inconsistent with the charter.

The problem is that it does not specify who has the authority to say whether or not it extends the ability of the ECJ. But it is clear that under this treaty the ECJ would, unless otherwise stated, have that ability to decide whether its decisions extend to the law of the UK. As the committee of this House made clear in its report, there is a strong point of view that the reason the Charter of Fundamental Rights is held not to be important is that it does not extend to the law of the UK because it is based on other international agreements. That is the case being put forward for why it does not have a significant effect. Therefore, it is entirely possible that the ECJ will conclude that any decision it makes based on the Charter of Fundamental Rights does not, by definition, extend to the law of the UK. It is then up to the ECJ how it will interpret the charter, on the assumption that it does reflect the UK laws.

There is a further problem which is that the introduction to the protocol makes clear, as we have discussed, that the charter contains provisions which are civil and political in character as well as those which are economic and social. So we have the possibility of the ECJ deciding that in interpreting the charter it is not extending the law of the UK and then making its judgment on issues that are political and social.

You do not have to believe, as the noble Lord, Lord Goodhart, suggested, that the ECJ would be irrational or deliberately misleading to interpret political and social matters in a different way from a UK court. As a result, as the treaty stands, it is perfectly possible that you could have judgments made by the European Court that it claims do not extend UK law and applying its interpretation under the charter of social and political issues. The ECJ is not absolutely a superior court; it is only a superior court on those issues on which it has jurisdiction. The whole question here is whether it has jurisdiction on these issues and interpretations.

The amendment proposed by the noble Lord, Lord Neill, puts beyond doubt that UK courts should decide on the extent of UK law and whether a measure extends UK law. UK courts should decide on the interpretation of the political and social issues that are covered in the charter. If the Government object to that, they have a difficult case to make the people of the UK.

Lord Lester of Herne Hill: My Lords—

Lord Goldsmith: My Lords, I start with an apology to your Lordships that I was not present at the beginning of the debate and that, up to now, I have not taken any part, although I have followed the debates closely. I am afraid that my new responsibilities have kept me away from the House more than I would have wished. I also apologise to the noble Lord, Lord Neill, because

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I came in part way through—indeed towards the end of—his speech in which he moved the amendment. I would not rise to speak but for the fact that what I said in a particular speech has been much relied on by him and by the noble Lord, Lord Owen. I thought that I owed it to your Lordships to explain what I was trying to say, in the hope that that will help noble Lords to reach a view on the amendment.

I arrived just a moment or two before I came into the Chamber and was told that the noble Lord, Lord Neill, was referring to me. Gratified, I rushed into the Chamber, only to find the noble Lord, Lord Kingsland, describing something that I had had something to do with as slovenly, so perhaps I should have stayed away.

I want to say two or three things that I hope are relevant to your Lordships’ considerations. I know that today is not the occasion to go into the history of the charter in any depth. At one stage, it became my special subject, because I had the job, on behalf of this country, of negotiating the charter, before I took office in the Government. There are two critical things about the charter. First, the charter was never intended to be applied directly to member states in dealing with those matters that member states have the competence to deal with. It was always intended to constrain the European Union institutions. The reason was relatively simple: by this stage, the European Union, having started off as an economic union, had gained more and more powers. How could it be, when each member state was constrained by constitutions, or by the Human Rights Act, or by the European Convention on Human Rights, that the European Union institutions—Brussels, if your Lordships will—were not so constrained?

The European Court of Justice had developed some jurisprudence, but it was not clear just what were the restrictions on the European Union, and that is why the charter particularly says in one of the horizontal articles that it is directed at the institutions and only at the member states when they are implementing Union law, which is really a way of saying that the member states are acting as agents of the Union. It is not therefore a substitute for the Human Rights Act, or whatever the equivalent is in other member states. The noble Lord, Lord Owen, absolutely rightly divined one of the issues in the negotiations for the charter, which was to make sure that we did not create confusion about the different rights by having a competing set of rights alongside those which at the time we were only just bringing into force in the sense of making them justiciable in this country through the Human Rights Act; though they had been laws that affected the Government in this country since the 1950s.

We also wanted to make it clear that the purpose of the charter was not to give the Union new powers. So it says in terms in the horizontal articles—which lack the poetry of any treaty but which are there specifically to make it clear what the constraints on the charter and the use of the charter are—that it does not extend the power or the mission of the Union.

Against that background, the Government’s view when I was part of them, and, as it happens, my view as well, was that the charter did not create the risks and problems that some attributed to it, because there were clear rules as to its interpretation, because it was

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clear that it applied not to the member states in their own right but to the European Union and because it was clear that it did not extend the competence of the Union in any respect. That is why in the speech to which noble Lords have made reference, I summarised the position by saying that the United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts. Moreover, in many cases the charter rights are based on national laws and practices and so they must mirror the extent and content of those national provisions. I give way to the noble Lord.

Lord Campbell of Alloway: My Lords, is what the noble and learned Lord has just said twice put in writing anywhere—that these charter ideas apply only to institutions? Is it anywhere in writing?

Lord Goldsmith: Yes, my Lords, it is. It is one of the horizontal articles. Noble Lords will forgive me that I do not have the text in front of me; the numbers change from time to time. It says that the purpose is to apply to the institutions and only to the member states when they are implementing Union law and not otherwise.

The purpose was therefore not to add to existing rights or mirror existing rights to apply to the European Union institutions so that they did not trample on our rights in the same way as we accepted this Government should not trample on our rights. Against that background noble Lords may well ask, “Why bother with the protocol? If that is clear, why bother with it?”. My answer to that is, “Why bother with it?”. It is something that was thought to be helpful, to make it clear. The noble Lord, Lord Waddington, said, “Let’s have belt and braces”. The purpose of the protocol was to be belt and braces; not that we believed that it was necessary, but it would put the matter beyond doubt.

I have two difficulties with what has been said. First, I understand from the report I have had—I apologise to the noble Lord, Lord Neill of Bladen, if I have got this wrong—that the noble Lord has relied on what I said as indicating a doubt on my part about the efficacy of the provisions that we put in the charter, or a doubt on my part that the European Court of Justice might go beyond its intended function.

Lord Neill of Bladen: My Lords, the noble and learned Lord was not here, but I expressly referred to the passage in his lecture where he said, “However, going into the treaty negotiations, it was clear that some within the United Kingdom still needed reassurance about the possible effects”, and so on. I did not attribute that to the noble and learned Lord; I said that he was reporting that there were those around him who had those fears.

Lord Goldsmith: My Lords, the noble Lord is absolutely right that I was not here. I am much obliged, and I thank him for putting that clearly to me. Certainly that has not been my view. I have seen views reported in many places, from broadsheet newspapers to pamphlets, suggesting all sorts of extraordinary things about the

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charter that I am absolutely confident it would not achieve. Be that as it may, it was about reassurance, and it was belt and braces. This is the fundamental point that I want to make to your Lordships.

The difficulty that I have with Amendment No. 27—I shall say nothing about Amendment No. 28—is that if you have belt and braces, what more do you want or can you have? If something is holding your trousers up round the middle and supporting them from the top, I am not sure what else you can have. You have some degree of support that is in mid-air, and with great respect to the noble Lord, that is what his amendment is as well. It does not change the fundamental point of what is the obligation; it seeks to create a remedy where one is not necessary and cannot be created.

The noble Lord may have referred to this passage, too, and if so I apologise for repeating it. I said in the lecture at page 13 that although I did not believe the protocol was necessary, if the courts in the UK or the ECJ were to disregard the clear provisions in the horizontal articles of the charter, then the protocol would have teeth.

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The point is that the protocol is a treaty which has exactly the same legal effect as any other treaty. Therefore, neither the European Union courts nor the United Kingdom courts could disregard the clear provisions of this treaty, which we call a protocol. They therefore cannot apply exorbitant or extensive interpretations of the charter. They are bound by the terms of the treaty, which is the protocol.

What would the noble Lord’s amendment do? It would do no more than say the same but that some national court had the ability somehow to rule on it. I know that certain people and possibly some noble Lords do not like it but—as the noble Lord, Lord Goodhart, said—the structure of the European Union is such that the European Court of Justice is the final decider of issues within its competence. If the European court sought to take a decision, a national court cannot strike down what the court has said. Therefore, the noble Lord’s amendment is the third suspension that is in mid-air. It can have no teeth, but it does not need any. The belt and braces are there to meet the concerns that the noble Lord, Lord Waddington, put forward. For myself, I could not possibly support the amendment moved by the noble Lord, Lord Neill of Bladen.

Lord Lamont of Lerwick: My Lords, the noble and learned Lord said that no national court can overrule the European Court of Justice. Will he comment on the arguments on the German Constitutional Court which was referred to by the noble Lord, Lord Owen, when this was debated in Committee?

Lord Goldsmith: My Lords, I was not present when the noble Lord, Lord Owen, spoke but I am familiar with the jurisprudence of the German Constitutional Court, which found a way through in the Solange cases when it effectively said that it could comply with the rulings of the European Court of Justice as long as its view was that they did not conflict with fundamental

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principles of German constitutional law. It reached that position and, as far as I am aware, though others with greater knowledge may correct me, it has not had a real problem of conflict between the two. That has to do with the German constitutional position and nothing to do with the structure of the European Union.

Lord Tebbit: My Lords, it is clear to all of us that if the Judicial Committee of this House or, in future, the Supreme Court gives a decision that Parliament feels is wrong and outside its powers, Parliament can put it right. Who has the power to overrule the Supreme Court in Europe in that way?

Lord Goldsmith: My Lords, the point the noble Lord, Lord Tebbit, makes is in no way particular to this debate. It is about the power in Europe—a much broader issue. It is the fact that the member states, which have the power ultimately to set the terms of the relations between member states, have the ability by new treaty agreement to take a different view from that taken by the European Court. It is not as straightforward as Parliament but they can do it. But in my judgment that is not particular to this debate.

Lord Lester of Herne Hill: My Lords, some noble Lords may find arguments by lawyers in this House less interesting than others. I do not wish to prolong this debate more than I need to, and I do not need to very much because I agree with everything that has been said by the noble and learned Lord, Lord Goldsmith, and by my noble friend Lord Goodhart. However, I would like to draw the House’s attention to the fact that the Select Committee on the European Union sub-committee on which the noble Lord, Lord Blackwell, and I served looked thoroughly at each provision of the treaty of Lisbon but especially at the charter of fundamental rights. In paragraphs 12.40 to 12.41 and paragraph 12.44 of the report, we summarised our conclusions.

First, we said that the charter does not confer new rights; the rights referred to are already contained in the international human rights treaties by which all member states of the European Union are bound. Secondly, we found that we could discern no threat to the public interest of the United Kingdom or its citizens in anything contained in the charter, given that it is there to shield, as the noble and learned Lord, Lord Goldsmith, has indicated, our citizens—the peoples of Europe—against the abuse of power by the European institutions. It is therefore to protect our citizens against abuses of power and does nothing more than is already binding on member states, as I have said.

Thirdly, we looked at the protocol and the terms of the treaty itself. We concluded that it is indeed a question of belt and braces. My own view is that either the braces or the belt were necessary only to give reassurance to noble Lords, such as the noble Lord, Lord Neill of Bladen, who for years has made plain his opposition to the European court’s activism, as he sees it. I do not believe that it was strictly necessary, but I am absolutely clear that the way in which it has

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been negotiated—by a most unslovenly former Attorney-General—was to produce a result that clearly, beyond any argument, prevents the charter “applying to the United Kingdom”, to use the words of the noble Lord, Lord Kingsland. I do not know what he meant by that. It does not apply to the United Kingdom in the way in which the European Convention on Human Rights and the European Court of Human Rights apply to the United Kingdom.

In Amendment No. 27, the court can indeed,

human rights in the Strasbourg court of human rights. It does so with the highest aspirations of Winston Churchill, Harold Macmillan and the former head of my chambers, Sir John Foster, at a time when the Conservative Party was the European party within our political system. That is what it does. Its judgments are binding and our judges have a duty to apply the convention rights directly as a result of the Human Rights Act.

I cannot understand why Amendments Nos. 27 and 28 propose complicated provisions that in the first place violate the supremacy of European Union law for the reasons given by my noble friend Lord Goodhart. They seek to place UK courts above the European Court of Justice in a way that is unlawful under European law.

Moreover, I do not understand this sudden concern about a possible overreach if the belt and braces do not work. No one has produced even a hypothetical example. The example of the German Constitutional Court is simply an example of a written constitution that states basic rights and freedoms in a way that need to be protected under the German system which had to be reconciled with the paramount law of the European Union. The German Constitutional Court, in its discussions with the European Court of Human Rights, managed to reach a sensible compromise on that question. The fact that there is a now a pending case about all this in Germany is nothing to the point. There has not been a German case I am aware of that would suggest even remotely that the charter could threaten the public interest of this country or its inhabitants.

As I say, we are to take a decision based on evidence. What was our sub-committee doing week after week? It was taking evidence, going through the charter, the red lines and horizontal effect, in order to see whether the view of the noble and learned Lord, Lord Goldsmith, was correct. We came to the view that it was completely correct and that he had reached the right conclusion. These amendments are not appropriate or necessary.

Lord Slynn of Hadley: My Lords, I apologise that I may have rather less volume of voice than I have conviction. Despite the onslaught of the noble Lord, Lord Waddington, I do not resile for one moment from what I said last time about the general principles which apply to the decisions and supremacy of the European Court of Justice. That is relevant to paragraphs 3, 4 and 5 of the amendment proposed by the noble Lord, Lord Neill of Bladen.

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From the day the European Community was founded and member states joined—one by one or three by three—it was fully accepted that there had to be uniformity in its law. The only way to achieve that was to give primacy to Community law. The European Court fully endorsed those principles adopted by the member states. Lawyers and judges not just in the European Court but throughout the Community have fully accepted this concept of the primacy of Community law. There is no possible justification or reason for departing from it today. Certainly, this treaty does not seek to do so.

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