Examination of Witnesses (Questions 540
- 556)
WEDNESDAY 16 JANUARY 2008
Rt Hon Jack Straw MP, Ms Rebecca Ellis and Mr Kevan
Norris
Q540 Chairman:
Is there this point, that we now have in the form of the Charter
a legally binding statement as to what the existing rights and
principles are and that in that sense it would now be difficult
to argue in the European Court of Justice or anywhere that in
fact those rights and principles are not in existence?
Ms Ellis: To what extent would we want to argue
that they are not in existence? Insofar as they derive from existing
sources they are in existence. As the explanations to the Articles
make clear, some of the provisions are principles which are intended
to guide the legislature and the ECJ when it is looking at that
sort of legislative measure or implementation by Member States.
Jack Straw: I understand the point you are making,
My Lord Chairman. To a degree it can be argued that these are
the reaffirmation of rights which already exist, but there was
a substantial debate about whether the original decision of, I
think, the Berlin Council in 1999 to have a political declaration,
a Charter, which was how this started, should be translated into
a document which had some legal base. One of the reasons why we
resisted that and then got the Horizontal Articles and now this
Protocol was because of anxiety that it was going to significantly
extend rights and also adversely affect the UK's interests. Only
time will tell and who knows, the ECJ may decide to follow down
the rabbit hole which you have set and see where it ends up! My
sense is that this will provide us with very significant protection.
It is quite interesting that there has been far less attention
paid and fears raised about the Charter this time round with the
Protocol than there was last time. Maybe if the Horizontal Articles
provide a lot of protection they would be quite difficult for
people to understand.
Q541 Chairman:
Just one follow-on. Is it the position that that the Protocol
was necessary, or was it simply a precaution?
Jack Straw: One way of putting it, which indeed
was Rebecca's at my briefing meeting, is that it puts beyond doubt
what should have been obvious from other provisions, which I thought
was really good.
Baroness O'Cathain: That is very neat!
Q542 Lord Bowness:
Lord Chancellor, is it not the case, having personally sat through
the drafting of this Charter of Fundamental Rights and the Convention,
that in fact this is addressed in the institutions of the Union
and the Member States only when it is implementing Union legislation,
which seems to me to be an important point to make? You referred
to the Horizontal Articles which were achieved at your Berlin
meeting. I think Lord Goldsmith, as your Government's representative
at that Convention, really fought all other Member States to achieve
the original Horizontal Articles and the provisions in those Articles
which refer to the rights being applied in accordance with national
law. Maybe you would not agree, but perhaps the Protocol is a
little superfluous given that all that was there in the first
place?
Jack Straw: Just picking up on the point I made,
Lord Goldsmith did a brilliant job. You have said we have got
Horizontal Articles to protect people, and this was raised with
me by constituents. When you start talking about Horizontal Articles
people think you have gone bonkers, basically. They have not got
a clue what they are about. Then you start to read bits of them
out and it gets worse! So what this does is it pins it down in
language that anybody can understand. It really is unambiguous
language. I can read this out at a party meeting in the town centre
of Blackburn and where I get questioned about this, let me say,
raised at meetings I pull it out of my pocket and say, "This
is what it says and I will get you a copy afterwards," and
people will be reassured. It is a possible point to answer as
to whether or not this provides more protection than the Horizontal
Articles alone would have provided had they been the only protection
in force. I think it just makes it clearer and less likely that
we will be under attack in this area.
Q543 Lord Burnett:
I remember going to a dinner in 1999 celebrating the emasculation
of the Charter by Lord Goldsmith. It has obviously come back.
It would be interesting to hear from you, Lord Chancellor, the
Government's reasons—and I do not disagree with the reasons
for the Protocol and maybe staying out of the Charter, but could
you list for us the reasons why the Government really wants to
sideline or stay out of the Charter?
Jack Straw: First of all, because it started
life as a political declaration. That was the basis on which it
was sold to people in Berlin, and so there was a very significant
resistance within British Government circles to having what was
sold as a political declaration later on turned into part of the
legal instruments of the Union. Secondly—and this is a point
away from our basic framework of thinking in this country, it
collides with Continental thinking and particularly the framework
of law—many Continental jurisdictions are used to having
declaratory statements in their constitutions and in a sense a
hierarchy of what is enforceable and what is not, and a sense
by everybody, including of course their higher courts, of the
fact that different parts of their legal instruments have different
force. That is not the case in common law systems and we are much
more literal and we look at the words on the page and think, "Hang
on a second. How will that apply in these circumstances?"
So there was anxiety about that and that was why we first got
the Horizontal Articles and now the Protocol. I am aware, Lord
Burnett, that there are people right across the political spectrum
in the United Kingdom who say, "How can you object to this
part, this right?" or "How can you object to that right?"
The answer is that in principle many of the statements made are
either very good or time-prosaic, but there is a separate issue
about whether, as it were, these should become part of our law
on top of the Human Rights.
Q544 Lord Burnett:
Do you think it is confusing, for example?
Jack Straw: Yes.
Q545 Lord Burnett:
Do you think there could be competing decisions from different
courts and things like that?
Jack Straw: Yes, all of that.
Q546 Lord Burnett:
I do not disagree with the recent kicking it into touch, in fact
I strongly support them. I would like not to see this Charter
at all, but nevertheless we are landed with it!
Jack Straw: We are more or less on the same
side! You have got to explain when negotiating history, as they
say, about the Charter and we recognise that other Member States
are in a different position from us. Then we got the Horizontal
Articles, and now we have got the Protocol. Do I think this has
been an exercise worth the effort by the European Union over the
last ten years? No. Do I understand why the exercise has been
undertaken? Yes.
Q547 Chairman:
You do not sound too convincing on that latter point!
Jack Straw: I have never been convinced about
working the Charter into these instruments. What I have, however,
been convinced about is that if others wanted it we should accept
it and then we should manage it, and we have managed it satisfactorily.
Q548 Lord Blackwell:
Could I just ask a specific question on the Protocol? The purpose
of the Protocol, as I understand it, is to limit the opportunity
for the European Court to adjudicate on the Charter in respect
of the UK. The limitation here is constrained to laws which are
provided within the UK national law. I take it that since the
UK will have enacted the Treaties and under those Treaties provided
the European Union with competencies, then the exercise of those
competencies is by definition provided for under UK national law.
Therefore, since the ECJ is the interpreter under these Treaties
of the competencies, the ECJ ultimately does in fact have power
to decide that under UK national law we have provided a certain
competence and that the Charter applies to it?
Jack Straw: Could I just say that this Protocol
would be worthless if the only laws to which it referred were
laws which were completely outside the activity and competence
of the European Union. How would the issue arise? An argument
about the right of way of a footpath, or something. I think it
means what it says.
Q549 Lord Blackwell:
But any comment to the EU is provided for de facto by UK
national law?
Jack Straw: Yes.
Q550 Lord Blackwell:
So the wording is meaningless?
Jack Straw: No, I am taking the opposite point
about the wording. A lot of our laws, regulations, administering
provisions, practices and actions (which is what it says) derive
from decision-making made inside the European Union and relate
to the overall competence of the European Union as translated
by us. Those are the matters which go before the Courts of Justice.
So it has to refer to matters within the European Union's competence,
otherwise it is worthless, and what would have been the point
of us wasting time in negotiating this if it were not to refer
to the activities of the European Union as we put them into force
in this country in terms of laws, regulations, administering provisions,
practices and actions.
Ms Ellis: I absolutely agree!
Q551 Lord Blackwell:
Just to be clear, if the ECJ decides that the competence the European
Union has in, for example, social policy across the European Union
allows it to interpret one of the passages of the Charter in respect
of that competence and that the ECJ decides that competence does
apply to the UK, that is de facto covered, the fact that
we have not separately legislated for it in national law? It is
part of UK national law by virtue of being an EU competence as
defined by the ECJ?
Ms Ellis: I think the language of Article 1
is quite clear and we certainly have not had any doubt about its
meaning. The inter-relationship between European legislation and
what is UK law by virtue of it having been registered at European
level is of course a somewhat vexed question, but I think we are
happy that this provision covers what it needs to cover in respect
of UK laws and it is says "laws, regulations or administrative
practices".
Q552 Chairman:
Can I just identify then the three types of provisions which are
identified in the Charter as either rights or principles, and
they are obviously the fundamental rights set out in the European
Convention on Human Rights, which we are familiar with, the fundamental
rights resulting from constitutional traditions common to Member
States, which is in the existing Treaty, and now in the Charter
a number of other rights derived from international treaties in
the main. What I want to ask is about the distinction between
rights and principles, which is something Lord Goldsmith has spoken
about in the past. Rights are obviously rights and the three categories
of rights which I have mentioned are identified in the Horizontal
provisions you have mentioned, Secretary of State, and the Horizontal
provisions go on to include a new provision, Article 52(5), which
tells you what the effect of principles is. These require to be
implemented. They are not axiomatically enforceable. They are
judicially cognisable only in the interpretation of Acts of the
Union of Member States and in their ruling on the legality of
Acts. So there is a distinction; which is clarified. The question
I want to ask is this: does the Charter help us with any precision
as to how you apply the distinction between rights and principles,
what are rights and what are principles? We find in the explanations
a few examples of principles, and apparently the explanations
took the view that some of the social and economic rights might
be rights rather than principles, so that the Protocol may have
a bite there, but otherwise we do not find much of an explanation.
Is that a weakness in the Charter itself?
Ms Ellis: We do not think so. Looking at the
source of the rights combined with the explanation, it is clear
which are rights and which are principles and the explanations
are specifically referred to in Article 6, so that due regard
must be had to them.
Q553 Chairman:
It is not a comprehensive explanation. In fact there are three
examples of principles given in the explanations relating to rights
of the elderly, persons with disabilities and environmental protection,
and then there is the one I mentioned where it is suggested that
some social and economic rights are not principles, which I think
would be contrary to what Lord Goldsmith said in 2000, but may
be redressed or answered by Article 1, paragraph 2, perhaps. That
was the point I wanted to press. Except perhaps for lawyers, it
is not very helpful to have uncertainty.
Jack Straw: I agree with that, and we thought
we would try to deal with it—not so much the uncertainty
but the complexity. That is one of the benefits of the Protocol.
Ms Ellis: I think Article 1, paragraph 2, is
certainly helpful in pointing to Title IV and the explanations
I think are a very good source of guidance as to the meaning of
these particular rights, but the fact that something is not identified
as a principle does not necessarily mean that it does not contain
at least an element of principle.
Q554 Chairman:
It was presumably found impossible, either in 2000 or last year,
to identify which were rights and which were principles?
Ms Ellis: I am not sure -
Q555 Chairman:
Otherwise, more than examples would have been given, would they
not? They would not just have contended themselves with instances
in the explanations if this had been an easy distinction?
Ms Ellis: I think we are happy that the instances
referred to in the explanations are examples rather than being
a comprehensive list.
Q556 Chairman:
Are there any follow-up questions? Secretary of State, unless
there is anything more that any of you wishes to say, that has
been extremely helpful for our purposes. We are most grateful.
Jack Straw: Of course.
Chairman: If there is anything you wish
to add, having seen the transcript, please do.
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