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I will deal briefly, because of the time, with the two important points which the noble Lord, Lord Neill, raised. First, he spoke about the common foreign and security policy. When the pillars of the community were set up, one pillar was confined to the common foreign and security policy. It was accepted universally that that should not be subject to review by the European Court of Justice. That has not been challenged. Every time it was suggested that the pillars should be changed, that the Court should have more jurisdiction over justice and home affairs, nobody suggested that the foreign policy should change.

The present Treaty on the Functioning of the European Union makes it absolutely plain that the European Union Court of Justice shall not have jurisdiction over provisions relating to the common foreign and security policy, nor to Acts adopted on the basis of those provisions. Yet it introduces in Article 275 that the Court shall have jurisdiction to deal with certain matters, particularly those which review the legality of decisions providing for restrictive measures against natural or legal persons—this is important and justified. I will not read Article 275 but that is an important and in no way restrictive position. The provisions included in the treaty follow what has happened and do not violate the principles we have observed today or which we should continue to observe. I regret that I may be totally inaudible or at the least extremely irritating in suffering either from a bug picked up in an airplane or from some cold from foreign parts.

7.15 pm

Secondly, the Charter of Fundamental Rights has been severely criticised for the way in which it happens. It has been made plain in the charter that its underlying rights include charter safeguards. The general articles are of great importance. That the charter is addressed primarily to the Union institutions and affects member states only to the extent that they implement European law is important. I will not say more about that. It is quite plain that the charter is not intended to extend existing rights. Those explanations will lead the court to follow the principles which are intended. It is important to remember in Article 1(8) of the treaty of Lisbon that,

The protocol, which has the same force as the treaties, is clear. The European Court of Justice not only cannot ignore it but also must enforce it. It cannot strike it down. The general principle we have followed should apply equally. I am being much briefer than I intended to be.



9 Jun 2008 : Column 432

On Amendment 28, your Lordships’ House and others already have all the reports of the European Court of Justice and the European Court of Human Rights. The Government intend, I understand, a statement of what has been achieved by the European Court and Court of Human Rights—it is already available in many other forms. It is a matter for the Government and Lord President to decide whether what is there is enough or whether we really need more, as proposed.

Finally, I remind your Lordships that the European Community is now to accede to the European Convention on Human Rights. That imposes obligations on the European Union and on the court. It will likely have the effect of restricting some of these exorbitant ideas which have been passed around, that the European Court is going to run amok and do some crazy things in order to defeat the objectives of the charter. It will not do so and what is in our present treaty is an adequate way of dealing with the matter. Again, I apologise. I thank your Lordships for your patience and hope for some audibility.

Baroness Ashton of Upholland: My Lords, it is a great privilege to follow the noble and learned Lord, Lord Slynn, who has demonstrated the strength of his convictions on this issue and his tenacity by speaking with a voice that I know is just returning. When I attempted to speak to him last week, he had no voice at all. I know the House wishes him well and hopes that his voice will return. To quote the noble Lord, Lord Kingsland, I am going to be telegraphic in my remarks because I do not need to repeat a lot that has been said and could not do so with the eloquence of my noble and learned friend Lord Goldsmith, the noble Lords, Lord Goodhart and Lord Lester, and the noble and learned Lord, Lord Slynn, with whose remarks I would like to associate myself and the Government. I am not going to try to cover what they have covered so adequately. I am also mindful of the time and that noble Lords will wish to reach a conclusion on this.

Amendment No. 27 covers common foreign and security policy and the Charter of Fundamental Rights. There are very clear reasons, which noble Lords have eloquently set out, why the Government have put in place the measures that they have. In doing so, the Government wished to reassure this House, another place and beyond, and to make clear what does and does not apply. We have made it clear that the European Court of Justice does not have jurisdiction over common foreign and security policy. There are two tiny exceptions to that, which I laid out fully in Committee, about policing the boundary between the two. They are that under the new treaty, the court has to protect the distinct character of the common foreign and security policy against encroachment from non-common foreign and security policy provisions, as well as vice versa, and the sanctions that apply to individuals that could come about under this. Beyond that, the European Court of Justice does not have jurisdiction in the way about which noble Lords have expressed concern.

The noble Lord, Lord Kingsland, was worried about the preamble,



9 Jun 2008 : Column 433

in the EU treaty. That is a misunderstanding about how the protocol works. Any judgment given on the basis of the charter cannot extend the ability of the European Court of Justice to affect the law of the United Kingdom. If the European Court of Justice did the completely unthinkable—we are back to the belt, braces and suspension in midair point—and ignored all the other safeguards in the charter and interpreted European Union law for other member states—a concern that was raised—using the charter to create new rights, it cannot affect our law. That is clear from Article 1.1 of the protocol, which states:

That is in the protocol, and the protocol stands.

The noble Lord, Lord Owen, previously raised the issue of the president of the European Council and the fear of seeping through the president into a jurisdiction. The European Court of Justice has jurisdiction over measures of the European Council with legal effects. It does not have jurisdiction over the political discussions or conclusions of the Council. Were the European Council to adopt legal measures relating to common foreign and security policies, which are extremely rare, they are clearly covered by what I describe as the “carve out” under Article 275. They would relate to the CFSP provisions, and so have jurisdiction on the president. If noble Lords refer to the treaty and look at what has been said, it is clear that there is no need for any additional provision.

My noble and learned friend has gone through the issues around the charter in great detail. I am not going to try to set them out again because noble Lords have listened very intently. My noble and learned friend referred to the interpretation and application of the treaty, but he did not have the reference in front of him. It states:

That was the particular point to which my noble and learned friend was referring.

I am not going to go into all the details about what has been covered on the charter and the safeguards that have been put in place, not least due to the incredible work of my noble and learned friend in negotiating that position. Suffice it to say that the issue that underpins Amendment No. 27 is the primacy of European Union law and the role of the European Court of Justice. If you sign up to a club—which, in a sense, we have done—with 27 member states, you also sign up to the referees that you put in place. The European Court of Justice is in a sense a referee. That is its function. Noble Lords may not like it and may wish that it did not exist, but that is what it does. Its work is important in making sure that the implementation and the work of the European Union is consistent. We have benefited from that. Noble Lords can point to many cases where the European Court of Justice has

9 Jun 2008 : Column 434

demonstrated that to our benefit. That is what underpins this amendment and is why the Government will not accept it.

I shall turn briefly to Amendment No. 28. So far, we have asked for 23 reports during our deliberations. I am mindful of not bombarding noble Lords with further information. In speaking to this amendment, the noble Lord, Lord Kingsland, referred to the Constitution Committee report, and I refer to the response to that report that the Government have already published. We have already committed to ensuring that a copy of the European Court of Justice’s annual report is deposited in the Libraries of your Lordships' House and another place. We have also committed to providing explanatory memoranda on all judgments during the preceding year in which we were a party, where we intervened or where we submitted observations. Just to make sure that noble Lords understand the context of that, it will be a considerable number of cases. Of the cases lodged with the European Court of Justice in 2007, we intervened or submitted observations in just over 50, and of cases lodged with the Court of First Instance, we intervened in just under 20 cases. We believe that by putting in the Libraries the European Court of Justice’s annual report and memoranda on everything where the UK has had an interest, we will fulfil what was behind the Constitution Committee’s requirement and request to us. That is a much better option than yet another amendment that takes us into another report. I hope that the noble Lord, Lord Kingsland, will agree.

We already work closely with the Joint Committee on Human Rights. We think that that is the best way to continue our work rather than setting up a parallel process replicating what is already done. That is all I am going to say. Everything that could have been said in this debate has very usefully been said. I am extremely grateful to noble Lords who have spoken. I hope the noble Lord will withdraw his amendment.

Lord Neill of Bladen: My Lords, I shall be extremely brief. I was surprised to hear the noble Baroness say that full protection has been achieved by the first sentence of Article 1 of the protocol. That seems a strange statement in view of the fact that the horizontal articles were not good enough, but something that says almost exactly the same thing, but introduces the word “UK” gives complete protection. That is among the answers she gave. We heard the noble and learned Lord, Lord Slynn, will listen to his advice and bear in mind the respect we owe to his speech.

The noble Lord, Lord Goodhart, said that we cannot legislate on the basis that the ECJ will err, but that is precisely what the Government did in calling for the protocol. There were references to paranoia. I shall not demean the argument by answering them. I do not believe that the noble and learned Lord, Lord Goldsmith, answered the passage I read from his speech saying that the protocol would bite in the event that this extraordinary thing happened. We never really had an answer to that. His position is probably that it cannot happen here. That is all I wish to say. We have had arguments both ways, and I wish to test the opinion of the House.



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7.30 pm

On Question, Whether the said amendment (No. 27) shall be agreed to?

Their Lordships divided: Contents, 172; Not-Contents, 188.


Division No. 2


CONTENTS

Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Ballyedmond, L.
Bell, L.
Blackwell, L.
Blaker, L.
Blyth of Rowington, L.
Bottomley of Nettlestone, B.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Bruce-Lockhart, L.
Burnett, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Carnegy of Lour, B.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Coe, L.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Craig of Radley, L.
Crathorne, L.
Crawford and Balcarres, E.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Dean of Harptree, L.
Dear, L.
Denham, L.
Dixon-Smith, L.
Dundee, E.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Feldman, L.
Ferrers, E.
Fookes, B.
Fowler, L.
Freeman, L.
Freyberg, L.
Gardner of Parkes, B.
Geddes, L.
Gilbert, L.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Goschen, V.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hanham, B.
Hanningfield, L.
Harris of Peckham, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Home, E.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
James of Blackheath, L.
James of Holland Park, B.
Jenkin of Roding, L.
Jopling, L.
Kalms, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Leach of Fairford, L.
Lindsay, E.
Liverpool, E.
Lucas, L.
Luce, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Mancroft, L.
Mar, C.
Marland, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Monson, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Murton of Lindisfarne, L.
Neill of Bladen, L. [Teller]
Neville-Jones, B.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Owen, L.
Palmer, L.
Palumbo, L.
Park of Monmouth, B.
Parkinson, L.
Pearson of Rannoch, L.
Perry of Southwark, B.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plummer of St. Marylebone, L.
Prior, L.
Quinton, L.
Rawlings, B.


9 Jun 2008 : Column 436

Reay, L.
Rees, L.
Rees-Mogg, L.
Roberts of Conwy, L.
Rogan, L.
Rotherwick, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Saatchi, L.
Sainsbury of Preston Candover, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Sterling of Plaistow, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Swynnerton, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
Trumpington, B.
Ullswater, V.
Verma, B.
Vinson, L.
Waddington, L. [Teller]
Wade of Chorlton, L.
Wakeham, L.
Warsi, B.
Wilcox, B.
Wolfson, L.
Wolfson of Sunningdale, L.
Young of Graffham, L.

NOT CONTENTS

Adams of Craigielea, B.
Addington, L.
Adonis, L.
Ahmed, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Avebury, L.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Best, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Bonham-Carter of Yarnbury, B.
Bradley, L.
Bradshaw, L.
Brett, L.
Bridges, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Chidgey, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clement-Jones, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corston, B.
Craigavon, V.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dearing, L.
D'Souza, B.
Dubs, L.
Dykes, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Garden of Frognal, B.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Goldsmith, L.
Goodhart, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L.
Hamwee, B.
Hannay of Chiswick, L.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hoyle, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of The Shaws, B.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Lea of Crondall, L.
Lee of Trafford, L.
Leitch, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.


9 Jun 2008 : Column 437

Lofthouse of Pontefract, L.
Ludford, B.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Miller of Chilthorne Domer, B.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Newby, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Neill of Clackmannan, L.
Patel, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Quin, B.
Radice, L.
Razzall, L.
Rendell of Babergh, B.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
St. John of Bletso, L.
Sawyer, L.
Sewel, L.
Sharp of Guildford, B.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Slynn of Hadley, L.
Smith of Finsbury, L.
Soley, L.
Steel of Aikwood, L.
Stone of Blackheath, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Teverson, L.
Thomas of Macclesfield, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tordoff, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Tyler, L.
Wall of New Barnet, B.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warner, L.
Watson of Invergowrie, L.
Waverley, V.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Crosby, B.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 28 not moved.]

Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8.42pm.

Moved accordingly, and, on Question, Motion agreed to.

Health: Obesity During Pregnancy

7.41 pm

Baroness Rendell of Babergh asked Her Majesty’s Government how they propose to combat the increasing threat to women’s health of obesity during pregnancy and childbirth.

The noble Baroness said: My Lords, scarcely a day passes without warnings about obesity appearing in the media: how, in its various manifestations—obese, morbidly obese and super-morbidly obese—it endangers the nation's health and is on the increase. Obesity in pregnant women is seldom referred to, although it has

9 Jun 2008 : Column 438

been called the biggest threat to women during pregnancy. In the Government’s large, tripartite obesity document, Foresight, I was unable to find any specific reference to obesity and pregnancy.

The problems are serious. Midwives and obstetricians have been aware of them and have been dealing with them for several years. Recently, things have changed. Due to the current obesity epidemic, if such it can be called, an increasing number of extremely overweight women are becoming pregnant. The rate of that increase is alarming. In 1980, no more than 8 per cent of women in England were classified as obese and the word itself was seldom used. If we heard it, a good many of us would not have known what it meant. That would be laughable today, for the prevalence of obesity had nearly trebled to 21 per cent of women by 1998 and current figures suggest that it may have reached 25 per cent. It is estimated that that figure will have increased to 50 per cent by 2050. It is clear that obesity is one of the greatest public health challenges facing healthcare professionals and that this trend must be reversed.

Body mass index is measured by dividing an individual's weight in kilos by height in metres and then dividing the result by height in metres again. An ideal weight for women is between 18 and 25. The Confidential Enquiry into Maternal Deaths of 2004 reported that 35 per cent of women who died were identified as clinically obese, with a body mass index of 30 or more, while a body mass index of more than 40 indicates morbid obesity. The latest Confidential Enquiry, that of 2007, shows that out of the 295 women who died 119 were overweight and 64 of those were morbidly or super-morbidly obese. In 30 per cent of women who experienced a stillbirth or perinatal death, the maternal BMI was recorded at more than 30.


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