On a point of order, Mr. Speaker. Today the Minister for Europe is publishing the Command Paper on prospects for the European Union for 2008, particularly about the Slovenian presidency and its ability to get the treaty of Lisbon ratified. It would be helpful if that document were available for this debate. Having checked in the Vote Office moments beforehand, I find that it is not. Perhaps you would look into the matter and see if it could be put right.
I think we can manage to get on with the debate. We will manage somehow or other.
On a point of order, Mr. Speaker. It is, I believe, customary for the Government to put down all documents relevant to debate. Frequent reference has been made in the House to the positions that the Government took during the negotiations on the European constitutional treaty. Could you ask the Minister to put before the House those positions and the motions that the Government sought to move in the constitutional treaty Convention so that all of us, rather than just some, can refer to them? I have asked the Library; it does not possess a copy.
As I have said previously on points of order, hon. Members can sometimes call on me to do things that are the business of Government. It is up to the Government to decide what papers to lay down in the course of the debate. I thank the right hon. Gentleman for raising the matter.
I beg to move,
That this House
approves the Government's policy towards the Treaty of Lisbon in respect of provisions concerning human rights.
The United Kingdom has been at the forefront of the development of fundamental human rights, especially since the notion was first articulated by Winston Churchill and President Roosevelt in the Atlantic charter in 1941. Nine years after that charter, British lawyers—including the distinguished lawyer Sir David Maxwell Fyfe, who later became the Conservative Lord Chancellor as Lord Kilmuir—were instrumental in drafting what became the European convention on human rights. The Labour Foreign Office Minister, Kenneth Younger, described the resulting document as
"following almost word for word the actual texts proposed by the United Kingdom representatives".
The rights contained within the convention have a long British pedigree, rooted in Magna Carta, the 1689 Bill of Rights and habeas corpus. They were a manifestation of the values already deeply imbued in the British social fabric and our common law. However, it is as much the origins as the effect of these rights that are relevant to this afternoon's debate.
The European convention was a means by which a continent racked by the most horrific violence and violations of the most basic rights could heal its wounds. The crucial development was the way in which human rights moved from just being noble sentiments to becoming legally enforceable mechanisms by which a nation's citizens could seek protection from the otherwise overweening power of the state.
Does the Secretary of State accept that, over the centuries, it has been this Parliament that has defined, upheld and shaped our human rights, and that it should be this Parliament that does so in future? The European charter would be too inflexible and would not reflect the will of the British people.
I do not accept that. It was this British Parliament that decided in 1971 to join the European Union. It was also this British Parliament that signed up to the Single European Act in 1986, to the Maastricht treaty and to the treaties of Amsterdam and Nice. We now have the prospect of signing up to this one. It is open to any party in this country to propose in its manifesto that the United Kingdom should withdraw from its treaty obligations and leave the European Union. That is the sovereign right of this country and this Parliament, and long may that continue to be the case.
The right hon. Gentleman did not mention the controversy within the Labour Cabinet over these matters in the late 1940s. He did not mention the hesitations and reservations expressed by the Lord Chancellor, Lord Jowitt, about the European convention on human rights, because of a matter that is germane to this debate—namely, the jurisdiction of an independent non-UK court. That was the crux of the difficulty that the then Labour Government were confronted with, as we are today.
I have not mentioned those things here. However, I have only just begun my speech, so that is not surprising. There are quite a number of things that I will have mentioned by the end of it. I want to reassure the hon. Gentleman, however. I was not going to mention that part of the history today, but I mentioned it recently in a lecture that I gave to a Justice and Guardian newspaper seminar—
It is on the website, but I would be happy to put it in the Library and lay it on the Table as well.
I am aware of the history, and of the fact that there was debate in both parties on whether it was acceptable to sign up to a convention and to be bound by the decisions of its courts. I have to say, however, that both the major parties, along with the Liberal Democrats—and their predecessor, the Liberal party—and now this Parliament have successively decided to endorse our signature of the European convention and our acceptance of the decisions of the Court at Strasbourg.
We all know about the European convention, whose history the Secretary of State is describing. What concerns us today, however, is why the Government think it appropriate for this additional charter—the charter of fundamental rights—to come into existence and to become an integral part of European Union law, as opposed to European convention law. Are we not simply duplicating?
May I take the right hon. Gentleman back to something that he said a few moments ago? He stated that the British people had signed up to the European Union. He is a man of great honour; will he at least acknowledge that the British people have only ever voted to join a trading relationship? What we are getting now is a quite different sort of relationship, which is why the Government should honour their promise and give the British people their say.
The debate during the 1975 referendum roamed much wider than that; plenty of histories of it have been written. It is a matter for the hon. Gentleman to win an argument within his own party. Perhaps he wishes to propose that his party commit itself to leaving the European Union—an idea on which the hon. Gentleman is very keen—and putting the question to the British people in a referendum. That would be the appropriate way to address that absolutely fundamental issue.
Meanwhile, I shall make a little progress before provoking some more interventions. Lest the House forget, I was just saying how the ideas moved from being sentiments to legally enforceable mechanisms. The lessons of European history are conspicuous: good will and paper barriers, in and of themselves, are no protection from the perils of authoritarianism. The creation of common minimum standards, backed up by law and enforced by supranational courts—that is the heart of the argument—has turned out to be a powerful guarantee of citizens' rights and freedoms.
Britain has played a pivotal role in developing that culture of rights and the idea of human rights across Europe. My point to Mr. Shepherd is that that has been of profound importance in helping to introduce across Europe shared prosperity and stability, from which our own citizens have so benefited. Without not only that culture, but the ability to enforce common standards of human rights, I doubt very much whether we would have seen the extraordinary progress made during the lifetimes of many right hon. and hon. Members, including mine. We have moved from a position in which only a handful of European states could be described as functioning democracies; there were dictatorships not only in eastern Europe but in what we now describe as western Europe. Today, almost every nation meets that description, or is working hard towards it.
When I was Home Secretary and Foreign Secretary I was very involved in the expansion of the European Union from 15 to 25 to 27. The key issue was not about bringing the economic performances of the countries joining up to a standard; the key issue for them was to ensure that their human rights provisions were raised to decent standards, in practice as well as theory. Without the bedrock of the European convention on human rights, and the other rights added to it and now described in the charter, that change—from which we have benefited and which was supported by every party in the House—could not have occurred.
How does it advance our democracy, in the terms in which the Secretary of State has put it, to arrive at a position in which rulings by the European Court of Justice on these enormously important matters displace Acts of Parliament, which are decided by the voters of this country on the basis of manifestos in general elections?
The problem for the hon. Gentleman is this: a manifesto was put forward by the Conservative party in 1970; I do not know whether he voted Conservative in that election, but it is beyond peradventure that he was alive for it. That manifesto said that if the Conservative party was elected to government—and it was, on
The European Court of Justice has been fundamental to the operation of the European Union ever since it was formed. That is my answer to the hon. Gentleman; I know that he disagrees with the mechanisms of the European Union, but it is for him and Bob Spink to have that argument in the Conservative party and commit it to what is in my judgment its most consistent position, although I disagree with it: leaving the European Union.
As regards the European court of fundamental rights, duplication has been suggested. Would it not have been better had the money that is being spent on this been put towards the European courts that already exist, which have a backlog of cases? As for the powers of the European court of fundamental rights, would the British people be able, for instance, to go to that court to complain about a governing party that promised a referendum on the European constitution but then denied it to us a year or so later?
A number of hon. Gentlemen are showing that they wish to intervene. If they will allow me to make some progress, I promise that they will all get in before I conclude.
For the future interests of Britain, and of Europe, it is right that we collectively take further steps to make the promotion of human rights integral to being part of Europe. That is the explanation for the measures within the Lisbon treaty—the charter, the accession of the European Union to the European convention on human rights, and further provisions regarding the rights of the child.
The Lord Chancellor has rapidly touched on the fundamental issue. I agree that the adherence of the European Union to the European convention on human rights is an absolutely key issue in promoting human rights within the Union. However, he needs to explain to the House why, if that adherence is to take place—it is long overdue—the charter of fundamental rights should then be imposed in the manner proposed by the treaty of Lisbon.
I have to say to the hon. Gentleman that I honestly think that the Opposition are trying to make silk purses out of sows' ears. They have no case. Let me go through the charter and recite a series of rights that are already accepted across Europe as fundamental to the way in which our democracies operate. When Mr. Lidington or Mr. Grieve stand up to speak, the first thing that I would like to hear is which of these rights they object to. Are they against
"respect for...private and family life"?
Are they against
"the right to liberty and security"?
Are they against—
We do not disagree with individual rights—we disagree with the legal process that means that they are defined and imposed on us instead of defined and imposed from here.
On a point of order, Madam Deputy Speaker. I am sorry, but this is just a point of clarification. We are now getting into the detail of the Bill, which I understood to be for the Committee stage. Are we moving into the Committee stage or are we still going through this nonsensical motion process?
I am grateful to the Secretary of State. He stated earlier that eastern European countries have somehow benefited from these new human rights laws coming out of the European Union, and that so would we in the United Kingdom. The fact is that those countries were only temporarily isolated behind the iron curtain. They had developed their own human rights for generations—for centuries—and they reverted back to them when communism fell; they did not learn them from the European Union.
The history of states in eastern Europe—of course, I bow to the hon. Gentleman's superior knowledge, particularly in respect of Poland—varies, as it does in western European states. Nevertheless, some of the eastern European states had not had any experience of democracy until after the Berlin wall fell—that is simply a matter of straightforward history.
The right hon. Gentleman will recall my asking him in a Select Committee about new rights. He asserted that there are no new rights in the charter, which was repeated by the Foreign Secretary last October. However, the right in article 13, which states that
"scientific research shall be free of constraint", is a new right. According to the Government's own explanation, it is derived from no existing source. I object to that provision because I support animal welfare, and I object to the concept of all scientific research being entirely free of constraint. Parliament should legislate to constrain such research. Does he agree that that is a new right, and does he agree that it is a highly controversial matter which would be much better debated in a national Parliament, rather than asserted unconditionally in a foreign jurisdiction?
I shall come on to the issue of those awful foreigners who are trying to impose their will against—[Hon. Members: "Answer the question!"] I am going to answer the question. As far as article 13 is concerned, that right is already part of EU law. It is the same as the right in article 10 in the European convention on human rights.
I will give way later, but I am going to make some progress.
I note that the only specific right mentioned in the charter of fundamental rights to which the Conservative party now takes exception—perhaps the hon. Member for Aylesbury has a longer list—is the right concerning scientific and arts research, and that was objected to only by the right hon. Member for Wells. The right hon. Gentleman will know that these rights are balanced against other rights, including those of animals. There is a clear protocol relating to the accession of the European convention on human rights by the European Union, which makes this clear:
"The agreement referred to in Article 1 shall ensure that accession of the Union shall not affect the competences of the Union or the powers...It shall ensure that nothing therein affects the situation of Member States in relation to the European Convention, in particular in relation to the Protocols thereto".
The right hon. Gentleman has asserted several times that nothing in the charter of fundamental rights creates new rights, and that the rights there already exist. However, in its website commentary on the treaty of Lisbon, the European Commission says that
"the Treaty of Lisbon preserves existing rights while introducing new ones."
Is he saying that the Commission is wrong?
There is provenance for every one of the rights contained in the charter. [Hon. Members: "Provenance?"] Yes, provenance. If the hon. Gentleman is saying that he objects to a particular right, when he comes to make his speech let him say in his own way to which of the rights he objects.
To recognise the advances that have undoubtedly been made in human rights in many parts of Europe, we need only compare the situation now to that 70 years ago. Would my right hon. Friend take the opportunity not to allow history to be rewritten? Hungary and Poland, in particular, pre-war, were deeply flawed, authoritarian states. They were disgusting states.
On a point of order, Madam Deputy Speaker. The Member for Walsall, or wherever he is from, stated that Poland was a fascist regime. That is absolutely scandalous. [ Interruption. ]
Order. I am prepared to hear the hon. Gentleman's point of order, but I say to all hon. Members of this House that some of the common courtesies of debate should be applied.
I take great exception to what has been shouted across the Floor about Poland—a major nation of the European Union. He describes it as having been a fascist regime. I take great offence at that, Madam Deputy Speaker.
May I just reply to the other point of order first? It is not a point of order for the Chair. It is matter of debate, and I therefore repeat my request that all Members in this House accept the common courtesies of debate.
As someone with some lineage connected to Poland, let me tell my hon. Friend Mr. Winnick that it was not a fascist state, but neither was it a perfect democracy. We in England do not have the best of records on anti-Semitism at that time.
I put it to my right hon. Friend the Secretary of State that, unless we wish to revert to a Hobbesian world of a war of all against all, contract and covenant between people and nations are necessary. In the World Trade Organisation, which is a treaty organisation, we have to accept derogation of our sovereignty, and it tells us what to do. The same applies to the International Labour Organisation, the European convention on human rights, the Council of Europe and so on. The Opposition have a choice: leave the EU—
I agree with my right hon. Friend. Any obligations to which we sign up, as long as they exist under international treaties, include duties as well as benefits. We must always balance the one against the other.
The hon. Member for Aylesbury mentioned the European Commission website. The Commission clearly set out the prime objective underlying the charter as making European Union citizens' rights more visible. The text does not establish new rights; that was never the intention. It assembles existing rights, which were previously scattered over a range of sources and therefore not always easy to trace.
Today, we live in a different age from when the European Union was founded. It comprised six, nine and then 15 states. It has almost doubled in size, bringing together 27 politically and culturally diverse members. The time is not beyond the memory of many in the House when a trip across the channel required a feat of logistics, including having to take one's passport to the bank to withdraw a maximum of £250-worth of European currency in one year.
Nowadays, British citizens make 55 million trips to Europe each year. Around three quarters of a million of us have homes in Spain, with a further quarter of a million with homes in France, while hundreds of thousands have settled or work elsewhere in the EU. Today, our constituents benefit from the EU and think nothing of living, working and travelling across it.
There is a damaging fallacy that human rights are something for the "other". The old home guard is wheeled out in the name of the defence of British interests. They paint a dismal picture of some form of Napoleonic resurgence, threatening the borders and well-being of the United Kingdom. The only response as they see it—we experienced it again this afternoon—is drawing back from Europe into the comfort of narrow parochialism. They seem to miss the fact that the British interest of the British people—yes, those who fly the flag and want it to be flown more often—is best served by being in Europe so that we can influence Europe. I want my constituents to receive the same protection when on holiday or on business abroad in Europe as they are afforded at home.
Before giving way, let me first make the same argument in the House as I do in discussions in my constituency when the issue arises. I ask my constituents where they go on holiday, whether they know anyone with an apartment or home in Spain, Italy or France, or anyone who has made use of his or her right to work elsewhere in the European Union. I point out to them that they would have far fewer rights when living or working abroad without our participation in Europe.
The Government ensured through the Human Rights Act 1998 that the rights contained in the convention were brought home to become directly enforceable by British judges in British courts.
The rights that the Secretary of State has described existed long before the charter of fundamental rights. May I take him back to the question that my hon. Friend Mr. Lidington asked? Since the European Union wishes to accede to the convention and the Government claim that the charter will not create any justiciable rights in this country, what practical benefit is the charter for the people of this country? Is the high point of the Government's case that they are protecting us from the wonderful document's having any effect?
The benefit of the charter is, as the European Commission said, that it assembles existing rights, which were previously scattered over a range of sources and therefore not always easy to trace. [Interruption.] It concerns existing rights and I am glad that the hon. Gentleman acknowledges that. Perhaps he will tell his Front-Bench colleagues.
Does my right hon. Friend agree that the previous intervention demonstrates the difficulty that we on this side of the House have with the Opposition? They do not understand that membership of the European Union is a two-way street or that the rights of UK citizens when in other countries are protected through such provisions. It was the same in the debate on justice and home affairs, when they did not understand that minimum standards in criminal law could affect UK citizens beneficially when abroad. Similarly, in the debate on energy the issue for the Tories seemed to be all about people nicking our energy supplies in time of crisis, rather than energy supplies from other member states coming here. It is the same in this debate—they do not understand the protections that our citizens can enjoy abroad owing to those fundamental rights.
I absolutely agree with my hon. Friend. I know that he has had the privilege and benefit of attending each of these debates and hearing what has been said. Yes, the European Union is a two-way street, but my point to my constituents, which they accept, is that when they go abroad, they want better rights than they would be afforded in many non-EU foreign countries. They benefit in EU countries, but they also want to know that if, for instance, they want to enforce their property rights, they can do so better within the European Union.
I have the greatest affection for my right hon. Friend and I always enjoy the sight of him skating very fast on thin ice. I am not a lawyer and this debate is in danger of becoming an argument between lawyers, so will he identify one new right—just one—that the legislation will introduce?
The answer— [ Interruption. ] The answer to my hon. Friend—[Hon. Members: "She's marvellous!"] I absolutely agree—she is marvellous, and I love her to bits. The answer to my hon. Friend, with whom I have a long and close association going back some years, is that the charter does not create new rights; rather, it brings together rights that were already there, as I have just said.
Will the Lord Chancellor confirm that every country that is a member of the European Union is also a signatory of the European convention on human rights? Indeed, I believe that every single one has incorporated it. In view of that, what is the purpose of the charter of fundamental rights? If it is innocuous, as he says it is, why have the Government negotiated a protocol that will supposedly make it ineffective?
Can the Lord Chancellor confirm that the charter applies those rights for the first time to the European Union institutions? That is a key part of the whole policy development.
Yes, I can, although many of those rights applied in any event. I can also say what the benefit is of assembling those rights together in a single document. It is that the people of Britain, among many others, can see what they are in a single document, rather than having to delve into various obscure—
Not all for me, for Pete's sake! I have given way to the hon. Gentleman already. I will give way to him later, but now I must make some progress.
As the House knows, the charter was originally drafted as a declaratory document agreed at the Cologne summit in 1999. Before agreeing that the charter should have treaty status, the Government insisted that greater clarity was required to define precisely what the scope and effect of such a status would be, which is the answer to the hon. Member for Beaconsfield. We pledged that nothing in the charter of fundamental rights would give national or European courts any new powers to strike down or reinterpret UK law, including with regard to labour and social legislation. That is what we have delivered.
We have also negotiated an extensive package of safeguards. Four measures in particular have been put in place: the new wording of article 6 of the Lisbon treaty; the charter's horizontal articles, found in articles 51 and 52; the revised official explanations accompanying the charter; and the binding protocol on page 172. Individually and taken together, those measures represent a substantial degree of protection for British interests. I will deal with them in turn.
The amended article 6 states:
"The provisions of the Charter shall not extend in any way the competencies of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general principles...of the Charter governing its interpretation and application and with due regard to the explanations...in the Charter".
The horizontal articles contained in title VII stipulate:
"The provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and", crucially,
"to the Member States only when they are implementing Union law...The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties."
In addition, the official explanations to the charter, which indicate the source of the rights and principles it contains, provide further clarification:
"The explanations drawn up as a way of providing guidance in the interpretation of the Charter shall be given due regard by the courts... and...Member States".
The explanations demonstrate that the charter does not create any new rights, but reaffirms rights that are already recognised.
The final measure, the protocol, which we have secured along with Poland, completes the protection. The language is unusually clear for an EU instrument:
"The Charter does not extend the ability of the Court of Justice of the EU, or any court or tribunal of Poland or the United Kingdom, to find that laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law."
Then there is a further limb to the protocol.
While the charter may indeed not provide for new rights, the European Court will for the first time be able to interpret that charter in countries where it is justiciable and thereby—the charter is drafted in very broad terms—effectively make major new law, as supreme courts do around the world. Does that not explain why the protocol is crucial, but only if it is watertight? Will the Secretary of State explain why it was not made clear when the terms of the protocol were negotiated that it would apply regardless of any other European treaty or other law made by the European Court? Without that, there is a real risk, notwithstanding the generally welcome protocol, that a loophole within it may negate its purpose.
I thank the right hon. and learned Gentleman for that helpful intervention. It is our view that the protocol—it should be taken together with the other three safeguards, but this applies even to the terms of the protocol itself—contains the safeguards that the right hon. and learned Gentleman and the British Government seek. [Interruption.] If he thinks otherwise, I look forward to hearing his speech, but that is our view. It is very clear that the safeguards that I have described mean that the charter does not introduce new justiciable rights and that the courts, domestic or European, are being given no new powers to overrule the will of the House.
I should point out for the avoidance of doubt, and since the issue is raised teasingly in the Opposition amendment, that the protocol does not operate like an opt-out, but the broad purpose is similar: opt-outs and protocols are there to provide safeguards for the UK. It does not disapply rights to UK citizens; given that the United Kingdom fully accepts the rights reaffirmed in the charter, there would be no need to do so. However, it ensures that what is in the charter is not additionally justiciable, as it might have been had it not been for the charter.
No, I am going to make some progress and deal with the issue of labour rights, which is of concern to Members on both sides of the House. Paradoxically, critics of the charter either bemoan the potential disparity in the level of workers' rights across Europe, which they suggest will lead to legal chaos, or alternatively complain that the charter will open up our own employment laws to new legal challenges. Let me clarify the position.
UK employees and citizens in general will not have fewer rights because of the protocol. In any event, as I said, the charter does not provide any new rights. Rather, it simply makes the rights that we already have more visible, and once the treaty comes into effect, it calls on EU institutions and member states to abide by them when they are implementing EU law. I have already quoted what the European Commission sets out on its website.
It is true that, under the treaty establishing the European Community, the European Union already has power to legislate, by unanimity, for collective defence of workers' interests in the social chapter, but it has no powers to decide what rights to strike should exist in national law. Article 137 states:
"The provisions of this article shall not apply to pay, the right of association, the right to strike or the right to impose lockouts".
The Lisbon treaty does not change that; nor does the charter affect it. The explanation to Article 28 is explicit:
"The modalities and limits for the exercise of collective action, including strike action, come under national laws and principles".
The existing rights and principles recorded in the charter will continue to work as they always have. The protocol serves to put that beyond doubt, but it does not create any disparity between workers across Europe.
No; I want to make some progress.
The Government can be proud of their record in championing the rights of British workers. Perhaps the most substantial, as well as the most symbolic, difference between us in the Labour Government and Opposition Members lies in the social chapter. As my right hon. Friend the Member for Rotherham put it so aptly,
"There is only one major EU agreement Britain has signed up to that differs from all the EU rules Conservatives lived with up to 1997. That is the social chapter."
I am proud that we signed up to it.
The social chapter was designed to create a minimum guaranteed level of social protection across Europe. It prevents countries from competing unfairly by allowing their workers to be exploited. I should have thought that, given all the concern about competition from eastern European workers, the Conservative party would now have realised the error of its ways. The last Conservative Government negotiated an opt-out, but we had a manifesto commitment, and we joined the chapter in 1997. As many Conservatives think that there are demons in it, let me mention that it includes the right to paid maternity and paternity leave—is the House opposed to that?—and the right not to be discriminated against on grounds of sexuality, religion or belief, or age.
Mr. Cameron has said that he supports flexible working, yet he told his party conference:
"I can tell you that we will get out of the European Social Chapter."
Opting out of social chapter rights would simply make it harder for parents to balance work and their caring responsibilities, and could even remove the right to paid holidays. The Opposition have consistently opposed the basic minimum standards enshrined in the chapter and reiterated in the treaty, which have been of particular benefit to low-paid women workers. I hope that the hon. Member for Aylesbury will tell us which elements of the chapter—they have delivered real rights and benefits to our citizens—the Conservative party plans to remove.
As well as clarifying and guaranteeing the rights of men and women, the treaty means that, for the first time, the European Union establishes the rights of the child as one of the general objectives of the Union.
I look forward to hearing from my right hon. Friend about the rights of children, which the treaty fundamentally improves. However, it is clear that parts of article 137—article 153 of the consolidated treaty—will be subject to a passerelle clause. I am thinking of
"protection of workers where their employment contract is terminated...the information and consultation of workers....representation and collective defence of the interests of workers and employers, including co-determination".
Should the passerelle be applied, those provisions might be subject to qualified majority voting rather than unanimity, and this country could lose its veto. Other countries could decide to override it if they gained a majority in the Council.
Where there is a passerelle clause, the move from unanimity to qualified majority voting can take place only if unanimity itself exists. We have an absolute veto in relation to whether we wish to move to qualified majority voting. Moreover—I know that this is not a matter to be discussed today, but I will mention it in passing—the Bill makes special provision whereby the House must vote in respect of any move from unanimity to qualified majority voting via a passerelle.
I am grateful to the right hon. Gentleman for giving way—although, to add a note of sourness, I feel that I must say that his performance would have been better given in Blackburn market.
Two courts are relevant to this House: the European Court of Justice sitting at Strasbourg and the European Court for this treaty arrangement. Where there is a conflict in interpretation of human rights, which court prevails?
I am grateful to my right hon. Friend for taking so many interventions. I share his pleasure about the directive he mentioned on workers' rights, but may I draw his attention to title IV of the charter, for which there is the special provision that he has referred to? Will he explain why we have decided that title IV will not create any new justiciable rights that are applicable to the United Kingdom? Finally, will he say whether it is the UK's intention to secure a majority for the agency workers directive?
No; I am going to finish, and I have already given way to the hon. Gentleman.
To conclude my previous point, as my hon. Friend Jon Trickett knows, the issue of agency workers has been the subject of considerable discussion in this country and between us and other member states. That can be, and will be—there is no reason why it should not be—resolved within existing treaty arrangements, notwithstanding the fact that we do not currently have the benefit of the treaty including the charter.
I will not give way again, as I wish to conclude—I am sorry to have to disappoint the House by saying that my speech will shortly come to an end.
I firmly believe, as do the Government, that Britain's best interests are served by working with Europe and by being closely involved in the Union, but on our terms. The negotiations that led to the Lisbon treaty have achieved that. British interests are strengthened through a series of opt-ins and opt-outs, and in the matter of the charter, not least through the binding protocol. I hope that there is cross-party consensus that there are overwhelming benefits to the British people as a result of our honouring international commitments regarding human rights. Even those on the Opposition Front Bench, in spite of the endless inconsistencies and contradictions of their policy in this area, seem now to have realised that it would be folly of the gravest kind to do what many Opposition Members were toying with doing not long ago: withdrawing from the European convention on human rights. I welcome at least that late change.
I also issue a warning, however. I fear that those who seek to attack the treaty by attacking its human rights provisions are at risk of doing great harm to the interests of the British people, as well as being injurious to our international reputation. We brought rights home to make it easier for our citizens to access their rights, and to make human rights considerations part and parcel of policy making. It is now time that we reinforce that protection across the entire EU regardless of where British citizens happen to be. We can do that through the Lisbon treaty—through the human rights provisions linked to it and the extensive safeguards that we have secured—and I commend the motion to the House.
I beg to move, to leave out from "House" to end and add instead thereof:
"disapproves of the Government's policy towards the Treaty of Lisbon in respect of human rights because of its incoherence and inconsistency on the status of the Charter of Fundamental Rights in the United Kingdom;
notes that after the Intergovernmental Conference was agreed the previous Prime Minister told the House that "it is absolutely clear that we have an opt-out from both the Charter and judicial and home affairs";
notes that the Minister for Europe told the House when debating the Treaty of Lisbon that "the fact is that the United Kingdom has neither sought nor achieved an opt-out on the Charter of Fundamental Rights";
and calls on the Government to adopt a clear and consistent policy whose merits Parliament may then judge."
I am delighted that the Secretary of State opened the debate on behalf of the Government. I congratulate him on his speech, which was a masterpiece of obfuscation. Opposition Members admire the way in which he shimmies around any challenge to do with the substance of the charter of fundamental rights and the content of the treaty. To develop the image of Mrs. Dunwoody, we see the right hon. Gentleman as the Kyran Bracken of the Government Front Bench. It is not just his experience as Foreign Secretary that commends him to us. Conservative Members' regard for the right hon. Gentleman is only enhanced by knowing that it was he who bounced the former Prime Minister into promising a referendum on the European constitution. After the French and Dutch votes he pledged that
"there will be no proposals made by this Government that seek to bring in this constitutional treaty, or elements of it, by the back door."—[ Hansard, 6 June 2005; Vol. 434, c. 1000.]
The right hon. Gentleman knows what my right hon. Friend the Leader of the Opposition said about seeking to restore national Parliaments' control of employment measures. He will have to wait with bated breath for the detailed presentation of Conservative policy, but I can promise him that his appetite will be satisfied well before the next election. [Interruption.] I am always impressed by the way in which Labour Members become increasingly excited by the prospect of what the future Conservative Government will do.
Mr. MacShane tried to come to the Lord Chancellor's rescue, but Conservative Members know what the Lord Chancellor said about his commitments on consulting the people, we know what he really thinks and we still cherish the hope, even at this late stage, that he will be prepared to step up to say what he privately believes about the need to consult the people.
There is a sense of poetic justice in our debating human rights today, because yesterday's events and the treatment meted out to Mr. Field, and the hon. Members for Manchester, Blackley (Graham Stringer), for Birmingham, Edgbaston (Ms Stuart) and for Vauxhall (Kate Hoey) remind us that the rights to free speech, due process and a fair trial need to be defended today with vigilance and determination. The Prime Minister must have set some new standard in ordering the persecution of four Members of Parliament for seeking to deliver something that not only they but he had promised the British people at the previous general election.
Let me deal with the motion, the treaty's content and its human rights elements. Three key elements of the treaty should concern us this afternoon. Paragraph 2 of article 6 provides for the European Union to accede to the European convention on human rights, but the Secretary of State did not give us a likely timetable for that. It might help if the Minister for Europe's response threw more light on that proposed time scale and on whether negotiating problems must still be overcome before accession.
The Secretary of State assured my hon. Friend Mr. Shepherd that in the event of a clash of judgments between the two courts, the European Court of Human Rights' decision would take precedence, but I can find nothing in the treaty text to support the Government's assertion. Ministers have a duty to explain in much greater detail exactly how such a conflict would be reconciled.
Perhaps I may assist my hon. Friend. The Secretary of State is wholly wrong in his assertion, because article 6 clearly states:
"Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law."
Therefore, the European Court of Justice would interpret the matter and would therefore take precedence.
In the absence of any detailed argument to the contrary, I find my hon. Friend's case persuasive. This is not an academic point, because such a clash actually happened when the ECJ ruled that the treaties did not permit Britain to allow Gibraltarians to vote in European parliamentary elections and the European Court of Human Rights declared that Britain's failure to give such votes to Gibraltarians left this country in breach of the European convention on human rights.
Does my hon. Friend agree that the major fallacy in the Secretary of State's argument is that all these rights, if we like them, can be granted by this Parliament and interpreted and enforced through our courts, with the advantage that if we do not like them as they evolve we can amend them here without needing the agreement of 26 other member states?
Surely the point is that the European convention on human rights provides explicitly that the European Court of Human Rights will interpret rights under the convention. Thus, in acceding to the European convention on human rights, the European Union will be bound not only by the principles of the convention, but by the decision of the Court in interpreting the convention. That is the point, and that is why Mr. Cash is wrong.
The problem with the right hon. Lady's assertion is that we do not yet know what the text of any accession agreement between the EU and the ECHR will be. The language that my hon. Friend Mr. Cash quoted indicates that the European treaties already contain provisions that tilt the argument in the opposite direction.
The Government have done a somersault on children's rights. In the early stages, Mr. Hain tried hard to delete any mention of children's rights from the text, on the grounds that its inclusion would be an extension of EU competence. Now, Ministers hail the inclusion of a reference to children's rights as some negotiating triumph. The Government still refuse to come clean over whether the words do matter and they made a concession of some significance during negotiations, or whether they believe that the reference is innocuous and changes nothing about EU competence. In the latter case, it hardly merits the fanfares that they have been busy blowing.
The Government's failure to be straight with Parliament and the British people on that point encapsulates what is wrong with their approach to this treaty and how, in particular, they have dealt with the impact of the charter of fundamental rights—the subject that will, rightly, be the focus of most of today's debate, the prime purpose of which should be to probe the Government on their answers to two questions. First, does the fact that the Lisbon treaty gives legal force to the charter of fundamental rights transfer powers, either actually or potentially, from national Parliaments and Governments to the institutions of the Union, and especially to the Court of Justice? Secondly, if the treaty does have such an effect, do the words of the protocol that the Government have secured provide the safeguards for this Parliament that Ministers claim?
We know for certain that the Government fought hard to resist any incorporation of the charter in the treaty. In fact, the notes used by the right hon. Member for Neath at the time of the convention said that the objective of the British Government was to ensure that the charter was relegated from the text of the treaty into "only a protocol". The use of the word "only" in that context should lead us to question the significance of the protocol to which the Government attach such importance today.
The Government rely on three basic arguments to defend their position.
The hon. Gentleman says that the debate has to answer the question of whether the charter of fundamental rights extends the competences of the Union. Has he read article 6.1? It states:
"The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties."
Yes. I want to deal with exactly that point in greater detail.
The Government have relied on three arguments to defend their position. First, they claim that the charter is nothing more than a declaratory statement and that it merely codifies rights that already exist. The Foreign Secretary asserted that as recently as
"only records existing rights; it does not create any new rights".
Earlier this afternoon, the Secretary of State for Justice said that the charter describes rights that already exist.
Secondly, like Mr. Davey, the Government argue that the words of article 6 of the consolidated treaty, together with the so-called horizontal articles of the charter, protect all member states—not only the UK or Poland—from the creation of new rights by the institutions of the Union.
Thirdly, Ministers claim that the protocol to the treaty in respect of this country and Poland alone makes it impossible for decisions of the European Court or the Commission to overturn the definitions of rights determined by our domestic law. The trouble is that when one starts to examine those claims in any detail, one realises that the safeguards appear less than watertight, as the European Scrutiny Committee found in its most recent report.
One also has to challenge the Government on a point of basic principle. If, as Ministers say, all the rights that are included in the charter already exist in both domestic law and the European convention on human rights, what is the purpose of the charter of fundamental rights being judicable by the European Court of Justice, too?
The charter sets out a number of rights that would, as a consequence of Lisbon, become for the first time rights that are embodied in EU law and judicable by the ECJ, even if they are not new rights. Most obviously, the recreation in the Lisbon treaty of the EU as a unitary legal entity means that subjects such as policing and criminal justice laws passed after Lisbon could be interpreted by the ECJ with the Court applying the rights and principles set out in the charter.
The treaty goes beyond the EU simply signing up to the European convention on human rights. The charter also includes a number of articles derived from other international agreements that have been entered into bilaterally by one or more of the member states. Those rights, too, exist in those member states but they have not hitherto been part of EU law and subject to the jurisdiction of the ECJ. In practice, when we hear the Government's arguments and look at what Ministers are doing and saying, we find that they are not behaving as though they believe that no new rights are being created. If there were no new rights and no new interpretations permitted of existing rights, why is there a need for the protocol at all?
The same applies to the argument put by the hon. Member for Kingston and Surbiton. If article 6, and in particular paragraphs 1 and 2, do not under any circumstances permit the extension of EU competence or the interpretation by the court of what is meant by EU competence, it is difficult to see the justification for the protocol in which the Government place such store.
May I refer the hon. Gentleman to an article by Professor Dashwood? He asked that same question:
"What then is the purpose of the Charter Protocol?"
His ruling was that it was
"Simply, it would appear, to make assurance doubly sure for those in the United Kingdom that remain determined to see the charter as a ravening beast, when it is really a paper tiger."
I think that the learned professor's arguments do not match the arguments advanced by the Government to justify the contradiction in their approach. The hon. Gentleman argues that everything is safe but, if that is so, there is no need for the protocol that the Government have negotiated.
The Government point to paragraph 4 of the charter's article 112. It requires that rights must be "interpreted in harmony" with the
"constitutional traditions common to the Member States."
Ministers have argued that the ECJ will take clear account of what happens in individual member states before it gives a ruling. The problem, once again, is that the decision about whether a particular interpretation of rights is "in harmony" with national traditions will be made not by national Governments or Parliaments but by the ECJ.
The ECJ will not be under a duty to look separately at each country's national traditions. Instead, the wording of the article makes it explicit that it will look at the traditions common to all member states. Where national traditions differ, ECJ judges will decide what balance they wish to strike. The president of the ECJ could not have made that clearer when he said that
"common constitutional traditions do not form a direct source of Community law and the Court of Justice is not bound by them".
The trouble with the Government's approach generally is that they consistently understate the importance of the debate about the ECJ's developing jurisprudence, which introduces a dynamic into a system that the Government seem to regard as frozen, now and for all time.
Let us look at the protocol that Ministers argue will stop the Court overturning the human rights provisions in our national law. The Government have placed particular emphasis on the fact that the UK has an exemption from the normal rules governing labour law. The Opposition and some Labour Members may have differences over policy, but we share a concern to get greater certainty about what is being proposed.
Title IV—the so-called solidarity title—deals with employment and industrial relations, but it raises as many questions as it answers. The protocol says that it is needed for the avoidance of doubt, but presumably such doubts continue to exist about the Court's power to interpret and overrule domestic law as that touches on the other 42 articles of the charter of fundamental rights. If there is not any doubt about that—if the UK's position is safeguarded—why is paragraph 1.2 needed at all?
The fundamental question for the Government goes deeper. Let us assume that Ministers are right to say that the protocol will stop the ECJ from striking down UK laws directly. That still leaves the question of how our law will be changed over time by ECJ decisions on rights in countries that are not subject to that protocol. The Government have produced no plausible argument that we can avoid our law being changed as a result of decisions about the charter being made in respect of other countries.
The Opposition have not invented that problem. The European Scrutiny Committee focused on it very strongly in its third report of the present Session, which was a follow-up report on the intergovernmental conference.
I thought that our right hon. and learned Friend put the point well and that the Lord Chancellor, with customary skill, avoided providing a persuasive answer, just as the Government have been unable, as far as I can see, to provide a persuasive answer to the comments of the European Scrutiny Committee.
Paragraph 38 of the Committee's report said plainly:
"If the ECJ gives a ruling in a case arising outside the UK on a measure which also applies in the UK, the duty to interpret the measure in accordance with that ruling arises, not under the Charter, but under the UK's other Treaty obligations. Nothing in the Protocol appears to excuse the UK from this obligation."
In paragraph 40, the Committee said that
"we doubt if it is possible to guarantee that it"— the charter—
"will not be developed and amplified by the ECJ. We equally doubt if it is possible to guarantee that the ECJ will not draw on the Charter as a new source for interpreting measures of Union law such as Directives".
In paragraph 41, the Committee concluded:
"If the ECJ does interpret a measure of Union law in this way, we believe the resulting interpretation would be binding in the UK, because of the UK's treaty obligations, notably the duty of sincere co-operation under Article 4(3) EU. These obligations are not excluded or restricted by the Protocol. On the contrary, and as the recitals make clear, the Protocol is subject to those obligations."
Does my hon. Friend agree that if the Government had been more competent in negotiating the terms of the protocol the problem would not have arisen? It would have been easy to say that the protocol should have effect regardless of other treaties or other EU law. In that way the protocol would have been watertight.
My right hon. and learned Friend's remarks are spot-on. As he knows, other protocols appended to European Union treaties include precisely the sort of clause he has in mind.
That is not what my right hon. and learned Friend the Member for Kensington and Chelsea was advocating. Mr. MacShane ignores the fact that a clause that such and such a protocol should apply notwithstanding other treaty provisions or European Court of Justice judgments is included in a couple of protocols already agreed and appended to European Union treaties, so there is a precedent.
We confirm that point in other areas of EU law, which are not always applied uniformly; for example, in other treaties the UK has opt-outs or opt-ins on protocols and when the ECJ rules on those areas of law it is not able to apply its rulings uniformly across the EU. Does the hon. Gentleman accept that point?
The hon. Gentleman has still not grasped the fact that the Court's indirect application to UK law of decisions based on the charter will circumvent any opt-out of the sort he described.
It is not only my right hon. Friend who says that Britain should opt out of the charter of fundamental rights; it was originally the position of the Labour Government, but they have subsequently abandoned it. If we further consider the likely consequences of a European Court of Justice decision deriving from the application of charter rights, we can see that irrespective of the protocol, any company that operates in more than one EU member state will change its practices across the EU, even in the United Kingdom or Poland, once the ECJ has given a judgment on what has gone on in one particular country.
"Regardless of the UK's exclusion clause, the EU courts will be bound to develop jurisprudence in fundamental rights matters which steadily evolve into general principles of EU law which all member states must respect."
That makes it clear that what my hon. Friend Mr. Lidington says is in danger of happening is exactly what will happen. Perhaps the hon. Member for Kingston and Surbiton ought to look at what his colleagues elsewhere are saying.
My hon. Friend is more optimistic than I am; I have long given up hoping or expecting to hear a consistent message from members of the Liberal Democrat party.
I am grateful to the hon. Gentleman for giving way; he is being very generous. He is eliding two things. The European Court of Justice may make a decision on an area in which the United Kingdom has rights, and that would affect us, but it also may make decisions about areas on which we do not have national rights, and that would not affect us. That is set out in paragraph 2 of article 1 of the protocol, which says:
"In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law."
If an ECJ decision is on an area where we have not provided national rights, the situation is different.
Unusually, the hon. Gentleman has failed to understand the thrust of the argument put not only by me but by the European Scrutiny Committee in its report: that even if we give the Government the benefit of the doubt and say that the protocol and the language of the treaty protect the United Kingdom from the imposition of ECJ decisions that directly override our national law, we are still left with the issue of what happens when the ECJ takes a decision in respect of a country other than the United Kingdom or Poland, and that decision has consequences for the way in which we in the United Kingdom conduct our affairs.
On that point, does my hon. Friend share the European Scrutiny Committee's concern about the preamble to the protocol? It reaffirms
"that this Protocol is without prejudice to other obligations devolving upon...the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally".
The Committee was concerned that that meant just what has been suggested—that the United Kingdom's other obligations under European law include ensuring even application throughout the European Union, including in the United Kingdom, of ECJ judgments that relate to other member states where the charter does have effect. That would give effect—
I shall try to make some progress and bring my remarks to a close. I am grateful to my hon. Friend Mr. Clappison for making an important point and further drawing out that element of the European Scrutiny Committee's report.
One must bear it in mind that any new legislation initiated by the European Commission, and affecting the entire European Union, is certain to follow the decisions made by the European Court of Justice on specific cases. Even if the protocol means that the United Kingdom is exempt for a time, once a decision has been made in respect of, say, Austria or Romania, subsequent legislation from the Commission on that topic will follow not the position in the United Kingdom but the situation brought about by the ECJ judgment. That legislation will then become binding on the United Kingdom.
The only way in which the protocol could insulate the United Kingdom from the impact of Court decisions based on the charter would be either for the protocol to have included the kind of clause described by my right hon. and learned Friend Sir Malcolm Rifkind, or for the Court of Justice to permit the development of two separate systems of jurisprudence within the European Union—one for the United Kingdom and Poland, and the other for all the other member states. I see nothing in the charter, nothing in the treaty and nothing at all in the traditions of the European Court of Justice that makes that seem remotely likely.
I fear that once again on this issue, as on others in respect of Lisbon, the Government have been trying to pull the wool over our eyes. We have had from successive Ministers a series of different positions on the charter of fundamental rights. We first had the then Minister for Europe, Keith Vaz, saying that it was of no more significance than The Beano. Then, as recently as last June, the former Prime Minister declared that
"we will not accept a treaty that allows the Charter of Fundamental Rights to change UK law in any way."
A month later in their White Paper the Government had slithered into a position where they were committed simply to ensure
"that our existing labour and social legislation remains intact".
Back in June, Tony Blair was insisting:
"It is absolutely clear that we have an opt-out from both the charter and judicial and home affairs"—[ Hansard, 25 June 2007; Vol. 462, c. 37.]
and just weeks after that, the current Minister for Europe told the Scrutiny Committee:
"The UK specific protocol which the UK secured is not an 'opt out' from the Charter. Rather, the protocol clarifies the effect that the Charter will have in the UK."
By January this year the Minister was saying that
"the United Kingdom has neither sought nor achieved an opt-out from the charter of fundamental rights"—[ Hansard, 28 January 2008; Vol. 471, c. 34.]— a fairly shameless rewriting of history, even by the standards of the present Government.
The British people deserved their Government to speak to them on these issues with both clarity and candour. Instead, again and again, we have been subjected to spin. Nothing that the Secretary of State has said this afternoon has persuaded me that we can have confidence in the Government's assurances and promises any more than we were able to believe those that they have repeated to Parliament and the public over the past few years. For that reason, I ask the House to support the Opposition amendment tonight.
Order. Now might be the moment for me to remind hon. Members that Mr. Speaker has placed a limit of 12 minutes on Back-Bench speeches, which operates from this moment.
We have had a great deal of discussion of the charter of fundamental rights. I am not sure that I can add substantially to it, other than to say that I believe it brings existing rights together and makes them more visible, as the charter says, drawing them from a variety of different sources—civil, political, economic and social.
Although we have the protocol, there is nothing in the charter itself that we could realistically object to. Indeed, it would do a great deal to strengthen our rights in this country, and I would like to see it in force in the United Kingdom, even though the protocol ensures that it does not apply. As it is drawn, the charter applies only in relation to European Union law or action taken under the treaty. Although the charter is made legally binding by the treaty, that is only in the context of European law. It contains not just rights but aspirational principles.
The Fundamental Rights Agency has the job of monitoring compliance with the charter. The agency emerged in 2003 under the Italian presidency and was drawn from the existing Monitoring Centre on Racism and Xenophobia. Much of its residual experience is drawn from that and that is reflected in the future work pattern of the Fundamental Rights Agency. The agency was negotiated under the UK presidency as a first-pillar agency under article 308 of the Nice treaty. Its duty is to enforce the charter of fundamental rights and, although other human rights instruments could inform its work, the FRA cannot actually enforce them. Its job is to monitor member states and EU institutions. It is also its job to monitor accession states but only after accession has been completed, which is a problem. I may be wrong, but I do not think that the charter and the FRA are taken into account during the negotiations for accession. This happens only after an accession agreement has been signed. That reflects a gap in the effectiveness of the agency and the charter. A much stronger lever could have been provided in the accession processes for Bulgaria and Romania, for example, where significant human rights issues needed to be addressed before the accession process was completed. That is doubly so in the case of Turkey where significant human rights issues have to be addressed before the accession process is completed.
There has been much debate about why we should have the charter—and, indeed, the FRA—when we already have the European convention on human rights and the Council of Europe, but until the EU accedes to the European convention, however, there is no monitoring of EU institutions for human rights compliance without the FRA. The agency can ultimately look at the gap in performance between the EU institutions such as the Commission and the Parliament.
The hon. Gentleman is making an important point about the need for the European Union to adhere to the European convention on human rights, and the fact that it has not been unknown for the Commission, for example, to violate human rights through its activities. Does he share my anxiety that, although it is implicit in the treaty that accession to the ECHR will take place, the mechanism and the precise text for achieving that are not before us? Such information could give us the kind of reassurance that the Lord Chancellor described when he said that the mechanism would be such that the ECHR and the Court of Human Rights would be supreme over the European Court of Justice in this area.
I have some concerns about human rights principles, but that is not one of them. I hope to develop that argument later in my speech.
At present, human rights are subject to monitoring by the Council of Europe, United Nations treaty bodies, non-governmental organisations and national institutions such as my own Committee, the Joint Committee on Human Rights. There is a need, however, to translate that monitoring into remedial action, if it is required, within the EU framework. The agency could fulfil that responsibility.
In respect of the potential conflict between the two jurisdictions, the hon. Gentleman might recall that the July 2007 White Paper states:
"There are complex legal issues involved in EU accession to the ECHR. These problems would have to be resolved before the Government could support it."
We have no evidence that those matters have been resolved.
I will be coming to the question of accession later in my speech.
At the moment, I am talking about the Fundamental Rights Agency, which has an obligation to complement the Council of Europe so as to avoid duplication. The Council of Europe's responsibility is to set the standards for human rights—such as those that we see in the convention—to monitor compliance with those standards and to provide a judicial function through the European Court. On the other hand, the European Union has a legislative function and a political function and much better enforcement capabilities. It seems to me, therefore, that the agency's job should be to develop recommendations from the Council of Europe and to implement them in such a way as to ensure that standards are met at EU level. I am pleased that a memorandum of understanding was signed by the EU and the Council of Europe in May last year.
I have some doubts about the independence of the FRA, however, and whether it complies with the Paris principles. According to those principles, it should be independent, but, given the way in which the regulations that drew it up were framed, I doubt whether they fully comply with those requirements. Its work is to gather information, analysis and reports and to take an advisory role. It does not have investigative powers or powers of scrutiny, which is a problem. That is a major gap in the agency's work.
Scrutiny is not among the activities set out in article 5. The lack of scrutiny of EU legislation for compliance with human rights is one of the big gaps. That process is pretty well missing. I believe that the European Scrutiny Committee made a recommendation about this, as did the Committee in the Lords in 2006. I suppose I am advocating something similar to part of the role of my own Committee, which scrutinises domestic legislation for its compliance with human rights standards. It is said that the Commission's job is to ensure compliance, but that raises the issue of who monitors the Commission's work, a point raised by Mr. Grieve. Realistically, that should be the role of the Fundamental Rights Agency, although it does not yet have it. Nor, I suspect, does it have the relevant expertise. It does not have the indispensable legal advisers that my Committee has, nor a partner equivalent to ours—the Ministry of Justice—that has an overarching responsibility to ensure compliance and to co-ordinate across government. Ultimately, that should be part of the presidency's job.
Human rights scrutiny should be done at the earliest possible stage of European legislation—long before it reaches member state Parliaments, where any such scrutiny will be cursory at most. My Committee does not have the resources to scrutinise European legislation properly for the purposes of human rights; as it stands, we are pretty stretched doing our domestic job. That important aspect should be addressed.
As I mentioned, the Fundamental Rights Agency is a first-pillar organisation, although originally it was intended to be a third-pillar one. The Lisbon treaty, of course, abolishes all references to pillars, but regulations for the agency remain first-pillar arrangements, although under article 31 there are provisions for review. It seems to me that in practice it would be impossible for the agency to do its job effectively if it were simply a first-pillar organisation. For example, to monitor and scrutinise effective action against people trafficking involves the full range of the three former pillars: not only European institutions, but police, justice and crime—and, I suppose, foreign affairs, given the issue of source countries. If we are to enforce on the issue of people trafficking, we need to recognise that.
The work programme of the Fundamental Rights Agency is interesting. Many British universities have also been involved in its work. The survey on discrimination against and victimisation of migrants is similar to the British crime survey. I am pleased to see that my old university, Warwick law school, is working on good practice in ethnic profiling by police and border forces, and I am sure it will produce an excellent report. As a result, there is analysis of how migrants are treated by the media. I wish the school luck on that; my Committee did some work on that issue and found it difficult.
Edinburgh and Glasgow universities are supporting work on pathways to violent radicalisation, although I think it potentially rather simplistic. There is also work on homophobia and the protection of children's rights in the light of the new rights in the treaty—objective indicators are being considered to measure progress in that respect. There is also holocaust education, on which we have a good record.
Earlier, the issue of EU accession to the European convention on human rights arose. It arose because of a 1994 European Court of Justice decision that the European Union could not accede. The Lisbon treaty, of course, provides for that mechanism. The real problem at the moment is getting the Council of Europe to agree—that requires unanimity on its part. All the countries involved have now ratified, save Russia, which I hope will get around to doing so before too long.
The risk of the European Court of Justice and the European Court of Human Rights developing divergent views on similar issues has been raised. It is important to recognise that those who advocate that line accept, effectively, that the charter and the European convention effectively deal with the same sort of issues—otherwise, the risk would not even be discussed. The answer is to look at the position of the ECJ as an EU institution. If the EU accedes to the European convention, it does so with all its institutions, including the ECJ. Effectively, therefore, the ECJ itself, as an EU institution, would become subordinate to the convention and the rulings of the ECHR. It would have to comply with views expressed by the European Court of Human Rights as arbiter of the convention. The circle is easily and properly squared by simply looking at the status of the different institutions that would follow from that.
I am pleased that the charter incorporates children's rights into the treaty under chapter III, which covers equality. It is a pity that that will not apply in the UK, because that might help us to deal with the reservation that the UK has expressed about the convention on the rights of the child in relation to immigration matters, which is now under review by the Government. I hope that we do not have to rely on the charter to resolve that.
Several issues arise in relation to the protocol. Nothing in the charter creates new justiciable rights, partly because of subsidiarity and partly because the solidarity heads are not rights as such but are more by way of principles. Even if they were rights, it is possible in the long term that the ECJ might make them enforceable. The protocol therefore becomes belt-and-braces protection. Having looked at the terms of the charter, that does not particularly worry me. The charter is an excellent document that sets out a whole series of excellent rights. It should inform our own future debates on a British Bill of Rights, which would, I hope, include most of the things that are set out in the charter, including the social, political and economic rights. That would be a huge step forward for our society and our democracy. I rather regret the reservation of the UK's position on the protocol. This is a very progressive document. We have nothing to fear from it and there would be an awful lot to be gained if it applied in the UK.
It is always a pleasure to follow Mr. Dismore, especially when it is not a Friday. He speaks with great authority on these matters, and the Committee that he chairs does an awful lot of good work. He talked about the agency for fundamental rights and the fact that we are not absolutely clear how it is going to develop. I share his concerns. It will have an important role, but we need to be clearer how it will operate and how it will check the Commission. I hope that the Under-Secretary of State for Justice, Bridget Prentice, will respond to the hon. Gentleman's comments.
I want first to set the scene for the positive role played in the development of human rights by Europe and by Britain. As the Lord Chancellor said, we should be very proud of that, and it is worth reflecting on. I also want to argue that there is nothing new of substance in the charter of fundamental rights—certainly nothing to be scared of—and to deal with remarks made particularly by Conservative Members in that regard. I then want to argue that the charter has a useful role and underlying purpose.
The hon. Gentleman is right, except in one regard—Mr. Heathcoat-Amory appeared not to like academic freedom, so at least one Conservative Member has pointed to a right that they would no doubt get rid of.
The hon. Gentleman has a gift for missing the point, and he has demonstrated it again. The assertion that scientific research must be free of constraint is in the charter, and it is entirely unconditional. Those of us interested in matters such as animal welfare and animal rights believe, contrary to that assertion, that Parliament should set limits to scientific research and that that should be debated and decided in a democratic Chamber according to the preferences of our constituents, not exported to a Court over which we have no control. That has nothing to with the hon. Gentleman's remark.
Is it now the policy of the hon. Gentleman and his party to be in favour of the unrestricted right of research scientists to carry out experiments on animals?
The question is one of process and how we establish the restrictions if there are to be any. We believe that they should be decided in this House. We are debating legislation in this area in Parliament at the moment, in the other place. I do not see the right hon. Gentleman's concern.
The hon. Gentleman started by echoing the Lord Chancellor's rather facile attack when he asked, "Which of these rights do you not like?" He was then forced, within about 35 seconds, to admit that it is all a matter of process. Perhaps we could now have a debate about process and whether the processes envisaged by the charter are sensible ones for this country to adopt.
It is a question of both. It is not just about rights or processes—[Hon. Members: "Both!"] Of course it is a matter of both. And I have to say that I disagree with the hon. Gentleman deeply on both issues.
No, I would like to make some progress. I shall give way to the hon. Gentleman later.
I believe that this country has a proud record in pushing for human rights, and I believe that the European Union has played a superb role in pushing for them in other countries. In the early part of the debate, people were saying that it is important that British citizens have their rights protected when they go to other EU member states. I also think, however, that the people of Britain would like to see higher standards of human rights and civil rights in other EU countries.
One of the great dynamics behind the accession of other countries to the Union is that they are forced to raise their standards of human rights. We saw that in Romania, in particular. A decade ago, Members of this House were concerned about the way in which orphans were treated in Romania, and because of its desire to join the European Union, standards of child care, particularly for orphans, were raised massively in that country. That is surely something we all welcome. It is just one example of the many practical things that have happened because the European Union has said, "If you want to join the club, you have to meet our high standards of human rights."
I will give way to the hon. Gentleman later.
I also think that my previous point applies to democracy. The whole point of the European Union is that it has forced people to accede to the democratic values that we share, and as Rob Marris said from a sedentary position, that is a very important development for the long-term peace of the world.
Human rights in the EU have been a major dynamic for good, but that is not to say that we can be complacent. One only has to read the reports of Amnesty International or Human Rights Watch, not just about such countries as Bulgaria or Romania, but even about this country, to learn that those who are watching EU Governments are noticing infringements of human rights. In such countries as Poland, we are seeing relatively extreme breaches of human rights. The 2007 Amnesty report states that in Poland:
"Lesbian, gay, bisexual...people were subjected to discrimination and intolerance."
It refers to the problems faced by Romany people in Bulgaria, and with regard to Romania:
"The Council of Europe and the European Parliament expressed concern at Romania's lack of willingness to engage in a thorough investigation into allegations of collusion with the US-led programme of renditions and secret detention centres."
The Amnesty report says that even in the United Kingdom
"the government continued to erode fundamental human rights"— a point that we have made continually. It is true that that the European Union has been a force for good in this area, but we cannot be complacent. That is why these debates are important, why the charter is important and why we should work with colleagues throughout the EU to go further in this area.
What extra dimension does the Lisbon treaty give human rights? It does not take us very far. Most of the big leaps in human rights occurred some time ago. Before Britain acceded to the European Union, the European Court of Justice dealt with protecting fundamental rights. That formed the basis of the principles of law that governed its rulings. Perhaps more significant is the way in which protecting human rights was developed by treaties, to which former Conservative Governments signed up. Conservative Members will have to answer that point.
"to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice."
In other words, the debate has been going on for a long time and parties throughout the House signed up to such protections. Article F of the Maastricht treaty states:
"The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms."
The background to our debate is therefore long established and was previously bipartisan. It is a shame that the Conservative party seems to be moving away from a commitment to those important human rights.
It could be argued that such bipartisanship as existed finished in about 1996 or 1997, when the Conservative Government, to their shame, would not sign up to the social chapter or allow workers in this country a statutory right to paid holidays and so on. The Conservative party, to its credit, has held a fairly consistent position since 1996 or 1997 of not wishing to extend human rights. It is the wrong position but it is consistent.
I accept the hon. Gentleman's analysis. When Conservative Members eventually determine their position, we will see whether they change or continue with that lamentable record.
Perhaps the hon. Gentleman will answer a question about Liberal Democrat policy. If there were an opportunity to do so, would Liberal Democrats withdraw from the protocol and give the European Court of Justice and the charter full effect in the United Kingdom, free from the purported restrictions of the protocol? Yes or no will do.
There is a case for what the hon. Gentleman says. The protocol does not do much. I shall argue that in due course. Lawyers to whom I have spoken say that it is a padlock on belt and braces. In other words, it is otiose. For those who have been worried—whether the CBI, those from the trade union movement or hon. Members—it may serve a purpose, but I hope that I will convince others that the protocol is an unnecessary padlock because we already have other safeguards.
When one examines the charter, some of the paranoid concerns quickly disappear. The charter records existing rights. When one reads the explanations, one finds their sources. It applies primarily to EU institutions. Conservative Members should welcome the fact that the EU institutions will be restrained and restricted and have to adhere to rights. If they believe in limited government and restricting the abuse of power, they should support that.
Some hon. Members have asked what the point of the charter is, if it does not contain much and simply assembles existing rights. The Lord Chancellor answered that question when he spoke of rights being more visible. We in this country and this House might think, "Well, we know those rights—we've debated them for decades." However, there are citizens in some member states and in countries that hope to join for whom such rights are strange and new, and would be welcome. Having a charter that brings those rights together, so that they can be put up in lights to say, "If you join the European Union, these are the sorts of the benefits that you can enjoy," is a good thing.
Given that all those rights supposedly exist already, would it not have been simpler to put them all in a book, rather than including them in a treaty that even the Commission accepts is designed to be unreadable and impenetrable?
I think that has already happened, so I am rather surprised by the hon. Gentleman's intervention.
If one then wants to argue about the impact of the charter—I do not believe that it introduces any rights, as I have said—or one is concerned about whether there are enough safeguards and protections, one has only to read the text in the surrounding documents. The preamble to the charter is specific and clear about the ambitions in the charter being deliberately limited. If one is still worried, one should look at the treaty of Lisbon. I quoted the second paragraph of article 6.1, which is absolutely clear, in an intervention on Mr. Lidington, but he gave no answer. One can then look at article 51.2, in chapter VII of the charter of fundamental rights, which could not be clearer:
"This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties."
Again and again, in all the documentation, the fears that are sometimes put forward are dealt with.
I have heard a great deal this afternoon about there being no new rights. Citizenship of the Union currently complements national citizenship, which has enormous implications for the charter, but the new arrangements are that citizenship of the Union shall be "in addition" to national citizenship. Those are two completely different matters, which have enormous implications for how we are to be treated under the European Court of Justice.
I look forward to hearing the hon. Gentleman explaining the massively significant difference in his speech, because it passes my understanding.
After all the protections that I have outlined comes the protocol, which is legally binding, which, as we have heard, could not clearer. People who are scaremongering about the impact of the charter should therefore go back to the text and see the protections that are there.
Does the hon. Gentleman not accept that the charter has already had a role in interpreting European law in this country recently? For example, BECTU—the Broadcasting Entertainment Cinematograph and Theatre Union—used it in recent litigation, while the Advocate-General referred to it when he granted holiday rights to those with less than 13 weeks' service.
Of course people will refer to the document, but then they are forced to explain the underlying sources of the rights contained within it. People can refer either to the charter, which is an easy reference document, or to the actual source—they can take their pick. However, before the charter becomes legally binding, they can still refer to the underlying directive, national law or provision in the European convention on human rights so, again, I do not see a problem.
We should be proud of the role that Britain has played in the development of human rights in Europe and across the world. We should continue to push the EU hard to develop its role on human rights. We should not gainsay the progress that has been made, but keep arguing. My only concern about the Government's position is that it is sometimes too defensive. I think there is a great story to tell about the EU's role in human rights, and I hope that the Government will join us in telling it loud and clear.
Although the debate has been fairly wide-ranging, one issue that I do not think we have covered in the necessary detail is the place of working people in Europe. The Lord Chancellor devoted about five minutes of his 45-minute speech to it, and there has been only fragmentary mention of working people in the context of the rights that they can enjoy, but the issue is tremendously important. Europe cannot be a construct of the bureaucrats, no matter how much Peter Mandelson and others like him wish that it were. Unless it puts down roots among the people of Europe, as an institution it has no future.
I am interested in the drift of policy dictating the treatment of workers throughout Europe. It could be said that in the 1960s, 1970s and 1980s a strong dose of Keynsian politics informed EU policy, but in my opinion and that of other Labour Back Benchers—there may be only a few of us, but that does not mean we are wrong—there is no doubt that the EU is increasingly taking a neo-liberal direction. In that connection, I want to refer to two important recent rulings from the European Court of Justice: the Laval case—nothing to do with the Vichy traitor—and the Viking Line case. I shall deal with them in some detail. At least they will then be on the record, and can form part of the debate about whether trade union rights in Europe have been undermined or are becoming stronger.
Not at this stage.
Viking Line is a Finnish ferry company. In 2003, it decided to re-flag its vessel the Rosella in order to register it in Estonia and employ an Estonian crew on Estonian pay and conditions, thus cutting its wage costs by 60 per cent. The Finnish shipping union appealed to the International Transport Workers Federation in London, which sent a circular to all affiliates telling them not to enter into negotiations with Viking. The shipping union called for Viking to maintain existing pay and conditions, and then threatened to strike.
Once Estonia joined the EU in 2004, Viking sued the ITWF in the High Court for restricting its "freedom of establishment". The case was referred to the European Court of Justice, which ruled that in future any strike action affecting that freedom would have to meet stringent legal tests that the Court itself could assess. At that point, a danger light went on.
Although the Court did not, on the face of it, rule against the employer, I would argue that the ruling is excellent news for corporate lawyers in the long term. They will be able to threaten trade unions with long and expensive court cases in order to discourage the unions—which do not possess the same resources as big business—from taking collective action against outsourcing or similar corporate behaviour. It also has very alarming implications for basic trade union rights and freedoms. Our right to industrial action has always come from the democratic mandate of the union through its members, according to laws determined by this Parliament. Now it will also need to meet criteria imposed and assessed by unelected European judges.
Even more serious is the Laval judgment. Although most Members will know exactly what I am talking about, one or two will not, so I shall help them out. Laval is a Latvian company which, in 2004, posted workers from Latvia to work on building sites in Sweden, including the now infamous site at Vaxholm. The Swedish construction union asked the company to agree to the existing collective agreement in the building sector. It refused, instead operating under a Latvian agreement with lower pay scales that undercut the Swedish workers' wages. The Swedish union quite correctly went on strike, and as a consequence Laval's Swedish subsidiary went bust.
Laval then sued the union for its losses and the case was referred to the European Court of Justice. The Court ruled that the company's freedom to provide services in any member state should not be restricted by having to comply with a non-statutory collective bargaining agreement. In a particularly alarming section of the judgment, the Court argued that, because the EU posted workers directive set out minimum rights, it was unreasonable to force the company to comply with further agreements at local or national level. So instead of EU legislation setting minimum standards of rights at work, we now seem to be in danger of those standards being seen as a maximum.
I think that the clock that is timing my hon. Friend's speech has been paused. My hon. Friend is making a powerful point, especially on the Viking case. The Laval case would have been solved had there been a national minimum wage, which Sweden does not have; the company coming in would have had to abide by that. I accept the criticisms my hon. Friend is making, but does he accept that last week the ECJ gave a ruling on employees who have to look after handicapped people at home, which could help 6 million people in this country? It has also helped us with getting pensions for steelworkers and with— [Interruption.] I am sorry, but if my hon. Friend cannot take an intervention, I will sit down.
Thank you. I would welcome the chance to debate the matter; I will come to Rotherham, and we might discuss it in a closed meeting of trade unionists and Labour party members.
On the Latvia case, the Court also argued that the Swedish union had to recognise the agreement reached in Latvia. It referred the case back to the Swedish courts. One reason why it did so was that the charter of fundamental rights was not legally binding at that stage. Under the treaty, it becomes so.
I am glad that my right hon. Friend thinks that the argument we are beginning to construct is powerful. The two cases I mention show how the EU has in too many instances become a factor in accelerating a race to the bottom on labour standards across Europe. John Monks is always seen as a big supporter of Europe, but he has said the following in the light of those two cases:
"The court has ruled in effect that the right to strike is not as important as the unimpeded free flow of services and labour. As such, more 'social dumping'—namely downward pressure on wages from cheaper sources—is now acceptable and is to be encouraged. To trade unionists around Europe it is plain that the EU, which hitherto has generally upheld workers' rights—in contrast to the US, and sometimes, sadly, the UK—has now taken a neoliberal, anti-trade union turn."
Coming from John Monks, that is a powerful statement.
My right hon. Friend Mr. MacShane mentioned that, where robust legal frameworks are in place, some of this case law can be circumvented. The problem is that in our country these matters are premised on the history of autonomous collective bargaining where the state has minimal legal regulations, so the dangers my hon. Friend has outlined are even more acute for us.
That is an excellent point. These cases show that the EU is moving towards a policy of undermining workers' terms and conditions. I am sure that other Members will make that case today.
Another aspect of the charter is also of concern to me: that the freedoms of capital seem to have become fundamental rights of the EU. Title II of the charter contains rights such as the freedom to conduct a business, the right to property, freedom of establishment and the freedom to provide services in any member state. Unlike the workers' rights under title IV, they do not appear to be covered by the provisions of article 1, paragraph 2 of the protocol, which states only that title IV cannot create new rights except in so far as they already exist in UK law. The right to provide services and freedom of establishment, which were the key points in the Laval and Viking cases, are not so restrictive. Article 15, which contains them, does not contain the proviso that they exist only in so far as they are already in law. That is one reason why the unequal status of the different titles in the protocol is of particular concern.
I hope that the Government can reassure us that this is not as significant as it appears to be, because there are concerns that the situation could be made worse still if future EU legislation or Court rulings were to apply those principles even further. For example, the services directive had at its core the principle of freedom of establishment. The directive was intended to liberalise services on free-market principles. In its original form, the directive included areas that we would consider to be public services, such as health. Even more alarmingly, it enshrined the country of origin principle. That principle provided that where services are provided by a company based in a different country, the legislation of the home country would apply, with a few minimal exceptions, such as basic health and safety standards.
Thankfully, those elements were removed from the directive as a result of pressure from some member states and, eventually, a majority in the European Parliament. The Commission has never fully accepted that, and seems to be finding imaginative ways of bringing those elements back, such as in the recent health directive. In that light, I hope that the Minister can reassure me on a few points.
First, is there any danger that by making the freedom of establishment and the right to provide services fundamental EU rights they could become even more powerful tools for big business? Can he assure us that the Court will not give them greater consideration or overrule EU legislation that does not give them sufficient weight? Secondly, will the Minister assure this House that the Government will do their utmost to resist any attempt to revive the country of origin principle or any similar measure?
Several other hon. Members are waiting to take part in this debate, so I shall simply say that if the EU's direction of travel is increasingly market-oriented and neo-liberal, Ministers may rest assured that many Labour Members will begin to doubt the so-called construct of a social Europe, and that Europe will never engage the hearts and minds of millions of working people across the continent. That needs to be borne in mind as we discuss the European Union's future.
Colin Burgon made a thoughtful speech. He pointed out the significance of judge-made law, which is very relevant to some of the points that I would like to share with the House.
This debate is meant to be about human rights, but actually it is not about that, because, despite some of the political arguments that are occasionally used, there is an equal commitment to human rights on both sides of the House, from all Members of Parliament. The issue is how we decide what those human rights should be and how we are accountable to the wider electorate whom we serve both in this country and in the other countries of Europe.
The significance of the protocol that was negotiated by the Government—if it is watertight—is twofold. First, it is important because it is a further step towards the kind of à la carte Europe that I wish to see. I believe that model will enable not only Britain but many European Union countries that have concerns about excessive integration to reconcile their membership of the European Union. The protocol curbing the power of the European Court is important in that respect. Secondly, it is about the wider issue of the European Union's accountability to the electorate.
Let me comment briefly on both those fundamental issues. If the protocol works, it will curb, for the first time, the European Court's ability to make law in substantive areas for the United Kingdom. We should realise that this kind of à la carte Europe, which Britain has pioneered, but in which other countries have participated, has several implications. First, it is not designed just for the United Kingdom. Poland has this protocol, and other European countries, such as Sweden, Denmark and a number of other states of that kind, have also opted out in various areas.
The second implication of an à la carte Europe is that it does not just give us the right not to participate in certain kinds of integration; we should also respect the right of other member states that may wish to go further. That right should be equally important. It should not have to be haggled about or negotiated, because it should be implicit in how we operate.
The Schengen agreement, the single currency, the protocol and the justice and home affairs provisions contain opt-outs for some countries, and not only for the United Kingdom. We must also take into account the hugely long transition periods for all the new member states from central and eastern Europe. Even if they want to join the euro, they may have to wait nine or 10 years in order to do so. That is not simply a transition; it means that for a generation there will be a European Union of the kind that we in this House should be much more comfortable about. That is an important point.
The second aspect to this matter is the wider issue of accountability to the electorate in respect of how our laws are made. Most of the dispute in this area in recent years has been not about the Court, but about qualified majority voting—it has been about the ability to take decisions that are not made unanimously. That covers very important issues, because inevitably when a minority of Governments do not vote for a proposition and it nevertheless takes effect in their nation states, there is no way that the electorates of those countries can hold their Governments accountable, because those Governments themselves were opposed to the measure imposed upon them. That is an argument as to why any decision to move to QMV should be taken carefully. I hope that such a move will take place in as few cases as possible.
I come to the issue of the Court, because that is what we are really discussing today. The situation is much more dangerous and disturbing than QMV, because a decision made by the European Court is different from a judgment made by a national court. If a United Kingdom court makes a judgment that embarrasses the Government or leads to a law that Parliament never thought it intended, Parliament has the power, if a sufficient majority exists, to reverse that court's decision by making new law. The Supreme Court of the United States has enormous power to determine new law and develop the law in a fundamental and often controversial way. If a consensus existed in Congress—it does not always—and the President and Congress agreed that the Supreme Court had created a situation with which they did not want to live, even the United States has it within its own power to reverse that situation, although that rightly involves a complicated and difficult measure.
Dealing with the European Court, rather than our national courts, represents a new situation. There is no way in which the decision of that Court can be reversed in a democratic fashion by those upon whom its judgment has an impact. The United Kingdom cannot reverse such a decision by itself, unless it has an enforceable protocol that can prevent the situation from arising in the first place. If the protocol does not apply, or it acts in other areas, a difficult situation arises. In theory, the only way in which a judgment of the European Court, however controversial, could be overturned would be if the Council of Ministers as a whole decided to reverse it. That would require not just a majority but a decision by all 27 member states, because any one state could veto such a change.
I follow the right hon. and learned Gentleman's argument. How is this different in any way from the way in which the World Trade Organisation's adjudication panel imposes its rulings on countries, irrespective of the will of Parliaments and sovereign Governments? Those rulings have to be accepted.
I am grateful to the right hon. Gentleman for that point, because there is a fundamental distinction between the two situations. When one is dealing with the WTO or any international treaty that concerns itself with the relations between states, of course one encounters curbs of the kind that he mentions. We are increasingly seeing the European Union move into domestic law and into the rights of individual citizens in respect of their health, housing, education or personal rights in a way that has no relevance to the WTO situation.
Let us consider the case of genetically modified organisms. The WTO is moving towards insisting that those should be freely traded. For many, although not for me, that has a huge impact on health considerations. Trade cannot be divorced from the health, social and other aspects.
I do not doubt that a choice will have to be made in some areas and that occasionally, with a great lack of enthusiasm, we will have to acknowledge that an international court may need to be the body that makes law that imposes itself on us, as it does on all other countries. The right hon. Gentleman should not get carried away with enthusiasm. I am saying that the onus will be on those who want such a situation to prove that this country's citizens have an enormous interest in sacrificing their own control over how decisions are made in order to achieve certain objectives. Sometimes that test may be met, but such occasions will rightly be relatively rare. If the European Court is able to reach judgments that cannot be overturned, however controversial, unless there is unanimity in the Council of Ministers, it in effect has the last word and is all powerful. That really is power without responsibility.
The other crucial point that has not been mentioned today is that the European Court's position with regard to the charter of fundamental rights is quite different from its position until now. Until now its role has been one of interpreting directives and specific pieces of legislation covering relatively narrow areas. The very point of the fundamental charter is that those rights are expressed in very broad terms, and that is exactly how judge-made law can expand in a dynamic fashion. We have seen in the US how the Supreme Court has used provisions that were put in the constitution more than 200 years ago on cruel and unusual punishment to deal with the issue of capital punishment. The right to bear arms is also used to justify the right of Americans to carry guns in the most extraordinary circumstances. Those dramatic developments of law have an impact on ordinary people, and Parliaments and other accountable bodies have not been involved. Just as the US Supreme Court has that power, so the European Court would have a comparable power with the charter of fundamental rights.
The situation is worse than with qualified majority voting because even when we or another Government are outvoted in the Council of Ministers, and have to accept a judgment that we do not like, QMV is normally—although not always—applied at the end of a long negotiation in which compromises are invariably made to assist the minority Government or Governments to live with the outcome. I have taken part in such Council of Ministers discussions as part of both the minority and the majority sides. Strenuous efforts are made to help the Governments who are being outvoted to live with it and sell it to their electorates. It does not always work, but the effort is made. When laws are made by the European Court, there are no negotiations, compromises or attempt to recognise the political realities. The rules are simply pronounced in the judgment and Governments have to like it or lump it.
I accept my right hon. and learned Friend's argument about the à la carte Europe, although I suspect that his argument is like the curate's egg. Does he accept that although he is right in his criticisms of the way in which the European Court could function—as the European Scrutiny Committee has made clear—the heart of his argument is wrong, because the only way in which we would be able to ensure that the decisions were taken in the interests of the people whom we represent would be to override the Court, in certain circumstances, by the "notwithstanding" formula in the amendment that I have tabled?
I have never had any problem with endorsing the curate's egg. It seems to me that the curate was being sensible, if his egg was only good in parts. That is occasionally true of my hon. Friend's speeches, and he might like to bear that in mind. [ Laughter. ]
I can understand my hon. Friend's view on that matter.
It does not matter whether we are Eurosceptics or believers in the European Union, we all believe in the democratic principle. If the European Union is to survive and prosper, it is crucial that power should only be given to institutions that are not directly or even indirectly accountable to the electorate in the rarest possible circumstances and with any constraints that are reasonable and proper in the circumstances.
I am delighted that unlike the constitution, and contrary to the Government's original strategy, there is a protocol that states that there will not be justiciability of the role of the European Court. The question is whether that is watertight. If the Government had been more competent during the original negotiation, they would have been able to remove the residual doubt by simply saying that the protocol will apply regardless of other treaties and regardless of European law. As my hon. Friend Mr. Lidington said, such constraints apply elsewhere and could have applied here, if the Government had not missed the trick. It would be difficult now that the treaty has been agreed for them to go back and renegotiate it. That means that we will have to be careful in analysing the Government's arguments to see whether, notwithstanding that omission, the protocol is something of value. If it is, it will not only help the Government and the United Kingdom, but it will be a big step forward in how to relate to the European Union for countries that want to be part of it, as long as it can show the flexibility and diversity necessary for an organisation of 27 and perhaps, one day, more than 30 countries.
Sir Malcolm Rifkind made, as always, an eloquent and passionate speech in support of his fundamental view of the protocol insulating the UK from the justiciable effects of the charter. I start from a very different position on the application of the charter of fundamental rights, so I shall not attempt to counter his arguments.
I regard this debate as one of the most important on the treaty, because the charter of fundamental rights, the decisions of the European Court of Justice and the tenor and direction of several EU directives are central to the issue of a social versus neo-liberal Europe, which lies at the heart of the European project.
The charter raises two immediate questions. Although I listened to both Front-Bench speeches, I am still very puzzled about why the Government are so adamantly opposed to the application of those rights in this country, especially as every one of the other 26 member states has accepted them without demur, including both right-wing and left-wing Governments. A pragmatic answer—although I am struggling to find an explanation—might be that the charter would ban excessive working hours. The British worker works more hours a week than anyone else in Europe and the CBI would like to keep it that way. It would also permit secondary action in industrial disputes, but at present British workers cannot take such action, although employers can. No doubt the CBI would like to keep it like that as well. The right to take secondary action has never been an issue in any other country in Europe, although it has had enormous implications in this country.
Does my right hon. Friend accept that the German constitution forbids some 1.5 million to 2 million civil servants and public sector employees from even going on strike? It is the Germans who insisted on many of the safeguards—the so-called lateral or horizontal safeguards—being put into the charter before the protocol question arose, to preserve their ban on strikes, which is far more draconian than anything in the UK.
I agree with my right hon. Friend. I am simply searching for an explanation and it may be that I have hit on the wrong one. I hope that I have, because none of the explanations that I can think of appears to carry much weight. If it is a matter of keeping the CBI sweet, I suggest that that is not the job of a Labour Government. Nor is it the responsibility of a Labour Government to implement what Tony Blair, the former Prime Minister, once commended to a business gathering as
"the most restrictive trade union legislation in the Western world".
We inherited that from the Conservatives.
It is shameful that we are not proud to welcome the charter of fundamental rights into our own legislation, which every other nation in Europe has taken in its stride as the foundation of a civilised society. I cannot see what the problem is. We have continual discussions about whether it will make a difference, and I am not sure that it would, but I cannot see why we object to implementing it.
It is far from clear whether the charter will affect UK law. The Government allowed the charter to be made legally binding, but then put forward a protocol that, they argue, will prevent the charter from affecting UK law or at least will limit its impact. However, others have queried the status of the protocol. The Swedish Prime Minister said on
"It should be stressed that the UK was given a clarification, not an opt-out".
Significantly, when Tony Blair was presenting the protocol to the UK Parliament on the day before, he misread the text —[Interruption.] Well, I assume he misread it. He said that
"'nothing in the charter creates justiciable rights applicable to the United Kingdom'".—[ Hansard, 25 June 2007; Vol. 462, c. 21.]
However, the text of the protocol actually says:
"Nothing in Title IV of the Charter creates justiciable rights applicable to the United Kingdom".
The clear implication is that although one section of the charter cannot be used to create new rights, other sections almost certainly will be. In that respect, I am sympathetic to some of the arguments coming from the Opposition. But even in respect of title IV on social rights, the text of the protocol states explicitly that the charter does not create justiciable rights applicable to the UK—and several people have quoted this—
"except in so far as the UK has provided for such rights in its national law".
It will presumably be left for the European Court of Justice to decide for itself whether the UK has attempted to provide for such rights in its national law and to decide whether the attempt to provide such rights is adequate in the light of the charter. Indeed, it is very difficult to see how this discrete carve-out, so methodically prepared, can work in practice. Firms operating in one member state will be affected, but if they operate in more than one member state, the charter will clearly apply. Migrants coming from another member state to the UK would presumably still be covered. Anyone who travelled to another member state from this country—for health services, for example—would presumably be able to use the charter. Moreover, there are 30 years of EU jurisprudence to say that there can be no two-tier system of European rights.
On the issue of title IV rights versus title II rights, is it not the case, given the protocol, that the European Court could interpret the economic rights under the latter as having precedence in this country over employment rights in the former?
"On issues like...agency workers, Europe must think first and foremost about jobs and competition"— namely, free markets? Is it not clear that the former Prime Minister gave primacy to competition over social protections?
I very much agree with what my hon. Friend says, and I am sure that he will pursue it at greater length later in the debate.
What I find most sad and perverse about this whole sorry saga is that, over time, this claimed uniqueness for the UK will almost certainly increasingly unravel. It will be eroded by ECJ judgments, which are quite likely to happen, and also by the interactive knock-on effects between title IV and the other parts of the protocol. It seems to me tragic that the Government are investing such enormous legal and logistical resources in resisting something on which they are all too likely to lose in the end, yet which every other country in Europe has decided is practical and desirable. I simply do not understand why the Government have got themselves into that position unless it is fear of the Eurosceptic press. That is the only other consideration that I can think of, but I hope that that is not the case.
For any Labour Government, enforcing a justiciable charter of fundamental rights should be integral to securing a social Europe to counter the neo-liberal orientations of the EU treaties. That is starkly illustrated by the Viking and Vaxholm cases, which were mentioned earlier. Two months ago, the Swedish and Finnish unions sought to prevent companies from massively undercutting pay rates by paying foreign workers up to 60 per cent. lower wage rates. However, the ruling was—this makes it so interesting and important—that although there was a fundamental right to take collective industrial action, such action represents a restriction on the employer's right of freedom of establishment. Of course, industrial action by its very nature will be an obstacle on the activities and freedom of the company. In other words, an employer's right to freedom of establishment trumps the union's right to strike. That is worryingly reminiscent, if I may say so, of the infamous judgment in the Taff Vale case of 1901. The Taff Vale railway took the Amalgamated Society of Railway Servants to court for having the audacity to go on strike. The crime was known then as being "in restraint of trade". Perhaps all that has changed is the terminology, because we are now talking about exactly the same point but it is now called freedom of establishment.
Nor is that an isolated example of the neo-liberal propensities within the EU treaties. The Lisbon treaty adopted the curious word—I had never heard it before—"flexicurity" to give the wholly false impression that if workers embrace flexibility, job security will automatically follow. Some of us might regard that as a contradiction in terms.
"Flexicurity" was developed by the Danish social democratic Landsorganisation. It is a term used in the Nordic countries to describe the combination of job security protection and flexible labour markets, which has allowed Sweden and Denmark to grow. It is a wholly social democratic and progressive concept—not a neo-liberal idea at all.
It is always helpful to have an exegetist of such immense academic knowledge as my right hon. Friend and I bow to his superior knowledge. However, whether he likes it or not, I still think that the term has neo-liberal implications—irrespective of whether it started out like that. The treaty also demands the abolition of what are called
"overtly protective terms and conditions"— a highly subjective notion, of course—in contracts that supposedly
"deter employers from hiring during economic upturns".
Despite all the spin about flexicurity—I entirely absolve my right hon. Friend of any accusation of using spin—the detailed language in some parts of the treaty suggests, unless it is balanced by a robust and effective charter of rights, a slippery slope on which it would be easy to slide back to the sort of casualisation and insecurity that we saw in previous decades in this country. That is my central point and bottom line in the debate.
That is all too clearly revealed, to provide one further example, in an EU green paper promoting flexicurity, which says that contractor obligations to monitor employment law among sub-contractors
"may serve to restrain sub-contracting by foreign firms and present an obstacle to the free provision of services in the internal market".
That just about says it all. The direction of travel is unmistakable.
For a final example, under article III-147 of the old constitution, which remains under the reform treaty, the EU would be given power to enforce privatisation in any area of economic activity:
"A European framework law shall establish the measures in order to achieve the liberalisation of a specific service".
We have already seen that in action with the EU services directive, which was seeking to extend the private sector into all areas of public service, but at least health care was left out on that occasion. However, a draft EU health services directive was adopted at the end of last year by the European Commission and was designed to create a market in health care.
I conclude that this abundant evidence of the neo-liberal underpinning of the EU treaties is the overwhelming reason why we need a balance to secure a social Europe, not just a market Europe, and why a charter for fundamental human rights is crucial to achieve that balance.
It is a pleasure to follow Mr. Meacher. He made an important speech that exemplified the extent to which rights, or at least some rights, are essentially political and economic in their origin and their importance. It should therefore perhaps be political and economic matters that lead to their definition and implementation.
All parties and all Members in this House are in favour of basic human rights—what we normally mean by human rights, which do not extend into the sphere of certain economic rights. All parties have always supported human rights, yet successive Governments have opposed the implementation into treaty law of a charter of human rights. Why is that? Why have successive UK Governments, including this one, opposed the implementation at a European level of a justiciable charter of human rights?
The matter would be clearer if the Government would do as I asked in my point of order at the start of the debate. For the convenience of the debate, they should table information about the positions that they took during the negotiations on the European constitutional treaty and the European Convention. Only then will we be able to see clearly what is from time to time referred to by those who are more knowledgeable than the rest of us—notably my right hon. Friend Mr. Heathcoat-Amory, who participated in that Convention. I hope that either now or when she sums up, the Under-Secretary of State for Justice, Bridget Prentice, will promise that in future, each day, alongside all the other documents that are supplied to inform our debates, we will have on the Table the resolutions that the Government moved and the terms in which they moved them during the Convention, so that we will know what the Government's position is or was.
Is the right hon. Gentleman aware that during the negotiations on the constitutional treaty—the one that the French and Dutch killed off—the Government set up a Special Standing Committee of both Houses of Parliament and invited every right hon. and hon. Member and peer to attend to hear from negotiating Ministers what was being said? Not a single Member from the right hon. Gentleman's Front Bench turned up to one of those meetings.
I am not certain that that is true. I turned up to those meetings frequently. They were meant primarily not to allow Ministers to report back but to allow the Members of this House who were sent to the Convention to report back, as they did. Both my right hon. Friend
My hon. Friend makes an extremely pertinent point with great crispness, as he has throughout these debates.
The reason, I suggest, that successive Governments of both parties have opposed the implementation in European treaties of a charter of fundamental rights and sought, even this time, to block its effect with a protocol is because we in this country have a pragmatic approach to human rights. We recognise that rights are not absolute. Each human right has to be balanced against another. Free speech has to be balanced against the right to protect one's reputation through the libel laws and so on. Somebody must decide the balance between those rights and, in the past, after the initial interpretations of the courts, this House has decided. Often, deciding the balance has been an intrinsically political decision. I think that that is the point that my right hon. and learned Friend Sir Malcolm Rifkind was making.
The rights as laid down in the charters and conventions are necessarily vague, imprecise and general, so somebody—or some body—must explicate them in accordance with the detailed circumstances in which we find ourselves; they must relate those generalities to the complexities of the life that we live. Some body must do that. In the past, this body, the Houses of Parliament, has ultimately spelled out what rights mean in detail rather than leaving such decisions to general statements from a different body of people: judges, who are unaccountable to the electorate.
Once we allow lawyers and courts to have the last say, rights will mean what the court says that they do. They will not mean what we thought when we signed up to those rights, or what the people who originally drafted them meant. They will mean what the court says. If that court is the European Court of Justice, there will ultimately be no recourse except in the extreme circumstances when all 27 members can agree to override the Court and change the rights or the constitutional treaties that govern us. That is unlikely and we cannot rely on it.
I recall an example of how important the discretion of the Court was. Normally, people would expect me to be hostile to the Court. However, on one occasion it was set to adjudicate on a claim brought against the British Government on pension law. It was an extremely important case and £5 billion of tax revenue hung on it. If the decision had gone against the British Government, we would have had to recall Parliament during the recess and bring in new taxes to replace the £5 billion of lost revenue. I had to report to Parliament during my preparations for the event and the Law Officers had to report on the likely judgment that we could expect. They reported that in their view, according to all the legal advice and in the opinion of both the prosecution and the defence, the British Government would lose the case.
I ventured, rather timidly as a non-lawyer, to suggest to my Cabinet colleagues that the Law Officers had overlooked one thing: the ECJ, although it is a court of justice, is a political court and will always put the interests of the EU first. It was in the interests of the EU not to upset the apple-cart. At that point, we had not ratified the Maastricht treaty. It would have been hugely difficult to ratify the Maastricht treaty if Europe suddenly deprived us of £5 billion in tax, and forced the Government to recall Parliament in the summer to pass £5 billion-worth of new taxes. I confidently asserted that all the lawyers were wrong and that the ECJ would take the politic decision and uphold our position. It did. After that, different Departments from Whitehall used to come and consult me about legal matters because they seemed to think that I had an inner judgment about what would happen.
We need to remember that the ECJ will have the last say on what rights are. It will make those decisions politically, but without any recourse to the electorate—unlike us.
My right hon. Friend is making an extremely effective point. I remind him that the situation will get worse under the treaty. Under article 9, paragraph 2, the ECJ will have to practise mutual sincere co-operation with the other EU institutions, which exclude member states. Any bias that he detects will be redoubled if the treaty is ever ratified.
My right hon. Friend makes an extremely good point that explains why we should look very carefully at what is happening and why, in the laughably short one and a half hours that we have to consider the amendments this evening, we should take every opportunity to amend the Bill. In that way we can try, to the extent that it is in our power, to prevent the greater dangers that lie ahead.
The other aspect of leaving the balancing and explication of different rights to the Court rather than to the parliamentary process is that we cannot amend decisions when circumstances change or if we find that they are not what we wanted or what our constituents feel to be fundamentally fair, reasonable and right. The fact that we cannot amend them means, in turn, that we cannot take risks with them.
Those hon. Members who have expressed concern about economic rights should know that I would feel far more confident about granting economic rights to workers, say, if I knew that they could be withdrawn if they did not work out to their advantage. For example, I might fear that a change might turn out to price people out of a job rather than increase their well-being. If I knew that it could be revised, I should be much more willing to be generous about trying it out in the first place. Therefore, we have a choice: we can either throw caution to the winds, leave all decisions to the ECJ and hope that everything turns out all right, or we have to be terribly cautious about granting specific economic and other rights, for fear that we cannot change them if they work out badly. Whatever one's position in these matters—whether one sides with the Labour Members who have spoken in the debate or with the neo-liberals to whom they have referred and of whom I assume that I am one—I urge the House to say, "Yes, we believe in rights, but ultimately they should be defended, protected, developed and evolved by the parliamentary process and not by a foreign jurisdiction over which we have no control and to which there is no recourse."
It is a pleasure to follow Mr. Lilley, who made some telling points. I entirely accept that this House should have primacy wherever possible, but the backdrop to the debate is that our economy has escaped our national boundaries. Parliament no longer controls it, and there is no longer coterminosity between how an economy works and the nation state. That is why, as I mentioned in my contribution last week, I believe that there has to be some sort of supranational collaboration on economic matters.
However, I fear that an open and free internal market in goods, labour and capital will have consequences for social cohesion, and I want to set out the problems that can arise. The requirements of the internal market in the EU mean that labour should be able to move around the continent freely, in the same way as both capital and goods and services. That is fine, provided that there are appropriate and adequate social protections to prevent the breakdown of community cohesion, which I fear is the corollary of having a free market in labour.
Yet it seems that the Government are allowing that breakdown to happen, which is why I want to return to the problematic and anomalous title IV in the charter of fundamental rights. The protocol makes the extraordinary statement that title IV, alone of all the other titles, will give rise to no additional justiciable rights in the UK. Why is that qualification attached only to title IV and not to any of the others? For an answer to that, we need to reflect a little on the history of that red line.
I did some research on the internet earlier today, and found the item that appeared on the BBC site at 10 minutes to 1 in the morning on the Saturday of last June's Brussels summit. The item states:
"Britain's 'red lines' are guarantees that the Charter of Fundamental Rights, which could give workers extra rights to strike, will not apply to the UK."
"We will not allow the Charter of Fundamental Rights to open up interference with Britain's labour laws and will not agree the new Constitution until we are sure that they are safeguarded."
The CBI said of the fundamental human rights contained in the charter:
"The most notable of these from an industry perspective are the rights" that the charter
"would confer on issues such as collective bargaining and the right to strike—both of which are already covered by the UK's extensive employment legislation. These, if conferred, could have an adverse impact and threaten the flexibility of the UK's labour market which is crucial to our continued economic success."
Does my hon. Friend agree that the former Prime Minister probably had little to fear from the interpretation provided by the ECJ, given that institution's previous judgments? It has made it clear that it will not allow any European provision to override British industrial relations law, but that it will interpret laws and rights that come from Europe in accordance with our domestic approach.
I should like to explore that point in a moment, as ECJ rulings tend to be complex and we need to understand them better.
The CBI said that title IV would threaten Britain's flexible labour market, but there is an interaction between the legal processes involved and the socio-economic processes that run alongside them. I shall give three examples of the problems that can arise. Although they come from my constituency, I am sure that other hon. Members will recognise them from their own.
The first involves a company that employed what might be called indigenous workers—people who had lived in the area all their lives. They were due to acquire additional labour rights after a year's employment, but as the deadline of 11 months, three weeks and six days approached, they were sacked. Within eight days, they were replaced: exactly the same number of employees were put into the same jobs, having been imported from Poland on agency labour contracts.
The second example involves a company that had an agency labour stand inside its factory. Two years ago, Parliament raised the minimum wage by 30p an hour, and the company immediately told its agency work force that it would accept that increase but that it would reduce the bonuses to which workers were entitled—and which were paid at a rate of £1 an hour—by precisely the same amount.
The third example from my constituency involves one of the largest firms in the UK. It is a big employer in my area, and it takes on huge numbers of migrant labourers. I assure the House that I attach no responsibility to those workers, as they are unfortunate people who are being dragged across the continent by profiteers. However, the company decided to do away with overtime payments. On new year's day 2008, it changed its shift patterns to avoid paying the workers double pay.
Those are the kind of actions taken in the much-vaunted flexible labour market that the CBI and our right hon. Friend Tony Blair had in mind when he decided to tackle title IV, which gives workers the right to collective bargaining and to take action in cases of conflict with management. We have heard on a number of occasions that title IV will give rise to no further justiciable rights in the United Kingdom, so we are entitled to ask the Government why on earth we are not having a proper debate in Government time about those labour market issues, which are of great concern in the labour movement. Why are we dealing with them in this debate? Why do promises made to me privately appear to have been dishonoured? It is not acceptable that we have to address such matters in this way.
Will the Government explain why they have put a double lock-out on title IV—"Solidarity"—which deals with those matters? Why are they allowing other rights and freedoms under the fundamental charter and not subjecting them to the same lock-out? It seems to me that the treaty deals with rights attached to collective bargaining and collective action that the Government have decided to put at arm's length and shove away from us, but other rights, such as the right of companies to establish themselves anywhere in the UK and to provide services anywhere in Europe, are not subject to the same lock-out. The position is anomalous and creates asymmetry; on the one hand, capital has rights to provide goods and services and to move across the continent, yet on the other hand there is a lock-down on the rights of workers to organise collectively should they be faced with oppressive management.
That leads to the point about the ECJ that my hon. Friend Ms Clark raised a few moments ago. The Court is apparently inhabited by a neo-liberal culture that attempts to give primacy to the needs of the free market and the internal market, with the open movement of labour, goods, services and capital, at the expense of collective bargaining rights. We have already heard reference to the Viking and Laval cases. I shall not go into them again, save to note that a contract made between an employer and an employee in Latvia now appears to have legal validity in the UK—this also applies elsewhere—should the company decide to bring Latvian workers to the UK. In considering the two cases in general terms, it appears to me that there is a series of rights, responsibilities and freedoms under the charter and that the Court—a non-political body—will be left to arbitrate between them. The Court will make political judgments in each case about which rights or freedoms should have priority. In the Viking and Laval cases, it is clear that the decisions taken by the Court gave primacy to the right of a company to establish itself and to provide services anywhere in the EU at the expense of the right to collective bargaining and collective action.
Arguably, other case law in the ECJ and in the UK may contest the decisions in those two cases, but the opt-out on title IV, and the particular phrase in question, seems to give a clear nudge and wink to the ECJ that it is right to interpret the hierarchy of rights and responsibilities as it has so far, and that in the minds of at least the British and Polish Governments, it is right to give primacy to the rights of companies to trade, sometimes oppressively in relation to their work force, rather than to the right of workers to take collective action. I think the ECJ will regard that wording as more than a nod and a wink to say that it should continue making decisions such as those in the Viking and Laval cases and in others.
In the absence of the proper debate I feel I was promised, I must press the Minister to address those specific points to give us some reassurance. A large number of Labour Members are concerned and every trade union in the country has endorsed the questions we are trying to ask. Without a satisfactory explanation, I fear that there is only one conclusion: the British Government, for whatever reason, have decided that the asymmetrical relationship between labour and capital that I described should continue, and that that asymmetry should work at the expense of labour and in favour of the interests of capital.
On a point of order, Madam Deputy Speaker. I seek your guidance about ensuring that information given to the House by Ministers is accurate.
Yesterday, at column 660 of Hansard, the Secretary of State for Justice said in his statement on the reported bugging of the meeting between Mr. Khan and Babar Ahmad that he was made aware of the burden of the allegations on Saturday. In the last hour we have learned that the Justice Secretary had a meeting in his Department to discuss press inquiries about the meeting between the hon. Member for Tooting and Babar Ahmad last December. Given that we know that officials in the Department knew about the bugging allegations last December, are we really to believe that they did not mention them to the Justice Secretary, and how can we ensure that he comes to the House to set the matter straight?
I understand the right hon. Lady's point of order, but she will appreciate that it is not a point of order for the Chair. However, her concerns will have been heard by Members on the Treasury Bench and her comments will be on the record.
I am mindful of the pressure on time for Members who want to contribute to the debate. I call Mr. Heathcoat-Amory.
My right hon. Friend Mrs. May, the shadow Leader of the House, has just given us a good illustration of how it is to the House that we look to defend our rights, not to any court—still less a foreign court.
Jon Trickett asked many extremely good questions about the extent to which social and employment rights will be enhanced, undermined or degraded by the operation of the charter and its associated protocol. No one in the House can give him an answer; we just do not know. All we know is that those rights will progressively cease to be a matter of contest between elected politicians but will be handed over to another jurisdiction and another court, which we do not control. That is why the debate is important.
The charter will cease to be a declaration and will become a fully binding document and because it will be part of the treaty, in full, it will be superior to national law. That is asserted in the treaty. We are thus making an extraordinarily important transfer of powers and authority in the treaty.
Yes, I can confirm that. If my hon. Friend glances at article 6 of the treaty he will see that the charter is incorporated in full as a fully binding legal document. It attains exactly the same status as the treaty and all EU law. That is a very important point.
This is an unhappy outcome for the Government; all the way through the Convention on the Future of Europe they tried to prevent it. They tabled amendments, which were not successful, and there was a sorry series of retreats from assertions made, and indeed from promises given to the House, about the status of the charter—that it would never be legally binding—to giving in and now trying to make the best of a bad job. Of course, the Government had a veto over the whole process. They should have made their red lines clear at the start of the negotiations, rather than come up with self-selected red lines at the end to try to show that our rights and powers had been protected.
No one has answered the question, "Why do we need the charter?" The European convention on human rights is much older, dating back to 1950, and it is already embedded in the EU, which is required to give effect to its general principles. That is in article 6 of the treaty on European Union. Of course, all member states are signed up to the ECHR. It has not been explained why we need a separate, overlapping charter, with its own case law to create more confusion. In my view, it is part of the EU's determination always to have a monopoly on legal rights and legal order. It is contemptuous and suspicious of any other organisation, whether legal, social or political, that might be a competitor.
On the remarkable story of whether the charter contains new rights, I intervened on the Secretary of State for Justice to point out that the Government's often repeated claim that there are no new rights is simply and flatly untrue. Just to remind the House, article 13 of the charter says that
"scientific research shall be free of constraint."
The explanatory notes confirm that that right is not recorded in any other document to which we are a party. That is a new right. When I was criticised on that point by Mr. Davey, I pointed out to him that I opposed the right because I believe that Parliament should restrain scientific research from time to time, in the interests of animal welfare and so on. He then said that he, too, was in favour of such matters being decided in Parliament, so he contradicted himself in the space of 15 seconds. Perhaps it is no surprise that he does not understand the issue.
If the hon. Gentleman will forgive me, I am short of time and cannot take too many interventions. We debated the matter to exhaustion. He could conclude only, rather lamely, that the House should decide such matters, but the whole point about the charter is that we will not decide. We are talking about a bald, unconditional right in the charter, derived from no other document, which takes decision making on those subjects away from the House. It is a matter of democracy, and if the hon. Gentleman refers to Hansard, he will see just how foolish his defence was.
There is also the remarkable saga of the opt-out claim to consider. The former Prime Minister, Tony Blair, often said that we had an opt-out, which was completely untrue. That was later corrected, but none of the well-paid officials who helped him issued a correction at the time. The fact is that we do not have an opt-out from the protocol. The European Scrutiny Committee shows, certainly to my satisfaction, that the protocol gives no defence against rights finding their way back into UK law indirectly as a result of our overriding obligation to abide by European Union law. That obligation is asserted elsewhere in the treaty that we are considering, and indeed in existing treaties. The European Scrutiny Committee shows that the protocol on which the Government constantly rely is threadbare. It is certainly fatally weakened.
The rights are incredibly general. Human dignity and physical integrity are again supported, and, in general terms, who could be against those concepts? However, they have great relevance to the debate on abortion. Whatever one's views on abortion, I think that we all agree that decisions on the subject should be made by representative Parliaments. We can contrast that with the situation in the United States, where such issues are a matter for judicial decision. That is one of the reasons why people there shoot doctors and try to blow up abortion clinics. Decisions on whether abortion should be restricted or available on demand are, as a constitutional right, made by the Supreme Court, and cannot be changed by Congress; that would require an amendment to the constitution, which is incredibly difficult and cumbersome to achieve. Removing decision making on that subject from the congressional sphere creates more frustration, and less democracy.
Exactly the same is true of respect for family life and the right to found a family; they sound fine, but they could easily be applied to issues that the House spends a great deal of time debating, such as the rights of asylum seekers and the extent to which they can be reunited with family members in other countries. At present, they generally cannot be so reunited. Would we like it if debates in the House became irrelevant because such issues were decided for us? The same is true of social rights—the so-called chapter IV rights—which are constantly, and rightly, raised by Labour Members. Those issues should be a matter of contest between ourselves. It is quite wrong that a decision about whether they are adjudicated on in the European Court of Justice depends on whether the protocol is strong, weak, or threadbare, or can be relied on.
We know that the European Court of Justice is an activist, interventionist court with its own dynamic. As I pointed out in an intervention, it is not neutral in any dispute between a member state and the European Union institutions. If the treaty is ratified, the ECJ will be required by treaty law to practise mutual sincere co-operation. I would never go to court if I knew that the court had to practise mutual sincere co-operation with my legal opponent, but that is the situation in Europe. If our protocol is under attack from the European Union, the arbitrating court has a duty to co-operate not with the member state but with the Commission, or whatever the European Union constitution involved.
The fact is that human rights are incredibly complex. They often involve conflicts and trade-offs. A balance has to be struck between competing rights, and that should be done here in Parliament. Of course we sign up to overriding international rights to moderate the behaviour of states internationally; that is what the European convention on human rights did, which we signed in 1950.
The charter, however, does something quite different: it drills down into member states' law-making processes. It will interfere with and replace decisions that we should make here. It is a further massive transfer of power and authority from the House to another jurisdiction, and people know that. They will cease to come and lobby us about their rights—about whether those rights should be extended, or whether the competing rights of, say, employers and employees should be removed or strengthened. They will not bother to do that. They will not vote for us if they know that those essential decisions are not made by us in Parliament. There is evidence that that already happens. There is disillusionment with the political process.
Let us not pretend that the loss of democracy here somehow creates democracy in the European Union, because turnout has declined in every single European Parliament election since 1979. The disillusionment is continent wide. The public are simply losing faith in the ability of elected people to influence decisions and outcomes affecting their lives. Again, in the section of the treaty that we are discussing, we are being invited to transfer more powers from the House. The Government were well aware of that danger, and that is precisely why they fought the proposals all the way through the Convention process. The Convention became the constitution, and when that was turned down, the Government fought the proposals in the new treaty. The safeguards and reassurances given are almost worthless; that is the conclusion of the European Scrutiny Committee's report. That is why I invite the House to support the amendment this evening.
Like Mr. Heathcoat-Amory, I shall focus on the charter of fundamental rights, pose some questions about how effective the protocol will be and highlight key labour market issues that a number of Members on both sides of the House have raised in the debate.
Four key issues appear to be relevant to a discussion of the labour market elements of the charter. First, to what extent will British workers be denied the opportunity to rely on the charter to interpret and expand existing rights derived from Community law? If British workers are unable to rely on the charter, is it conceivable that EU rights will have a diluted status in the UK? Secondly, to what extent are British workers protected when they take industrial action that an employer claims violates his or her right to freedom of establishment? Is it enough that the workers have complied with domestic law, or is their action vulnerable to legal restraint?
Thirdly, to what extent are British workers at a disadvantage compared with workers in other member states by virtue of the fact that they are unable to rely on the charter as a defence in legal proceedings against them by an employer who claims that their action violates EU law? In effect, does the opt-out prioritise business rights over UK workers' rights, as a number of my colleagues mentioned earlier?
Fourthly, we must assume that the charter is designed to add value to existing rights and principles in European law. If it does not, what is the point of it? What do the Government believe has been added and what do they believe will not be applicable in the United Kingdom?
To pursue those topics, I shall go back to the Laval and Viking cases—important European case law that emerged only at the end of last year, after the signing of what was initially the opt-out and subsequently became the protocol. They have profound implications for European labour law and specifically for this country, with its history of legal abstention, in respect of the role of the law in industrial relations.
Viking Line is a Finnish ferry company that decided in 2003 to reflag its vessel and employ an Estonian crew on Estonian pay and conditions, cutting its wage costs by some 60 per cent. The case was referred to the European Court of Justice, which ruled that in future any strike action affecting this freedom would have to meet stringent legal tests that the Court itself would assess. The key issue, which I find unprecedented, is that no longer does the legitimacy of industrial action rest upon the democratic mandate of the Union derived from its members and regulated through laws determined by the Parliaments of member states. Now it will also need to meet the criteria imposed and assessed by European judges. I see no precedent in domestic strike law in the UK.
The Laval case is central. As my hon. Friend Colin Burgon mentioned, Laval is a Latvian company, which in 2004 posted workers from Latvia to work on building sites in Sweden. The Swedish construction union asked the company to agree to the existing collective agreement within the building sector. The company refused, operating instead under the Latvian agreement, including a lower pay scale that undercut the Swedish workers' wages.
Subsequently the Court ruled, essentially, that the company's freedom to provide services in any member state should not be restricted by compliance with non-statutory collective bargaining agreements in one member state. Again, that has huge implications for an industrial relations system that is built on legal abstention and free collective bargaining, as in the British case.
Critically, the Court argued that because the EU posted workers directive set out minimum rights, it was unreasonable to force the company to comply with further non-statutory agreements at local or national level. So, instead of EU legislation setting minimum standards, which has been the argument over the past 20 years, going back to 1988 and Jacques Delors coming to the TUC, we now face the threat of those standards being seen as maximum criteria across the EU.
All of us on the Labour Benches should be acutely aware of the implications for further labour market deregulation. Those two cases, among others, give rise to widespread concern that in recent case law the EU has been engaged in a race to the bottom in terms of labour market standards. Indeed, it could be argued that the very notion of a social dimension to the European project, a cornerstone of the Labour party's strategy over the past 20 years, is under threat. That deserves profound discussion in this place, not least because of the centrality of that concept in redirecting our party's approach to Europe more generally.
Let me deal specifically with the protocol and workers' rights. The first concern is that the protocol could restrict the protection of workers' rights. However, I understand the Minister's position that this is not an opt-out, and I hope that she will make it clear in her reply that it will not affect the way that the title IV rights are applied to EU law. That has been the approach throughout the Committee stage, but we need to hear a far broader outline of the Government's position as there is confusion about that on all sides.
I note that many of the articles contained in title IV specify that the rights that they set down are defined as they exist in
"Community law and national laws and practices".
The Minister may argue that therefore the protocol is simply a truism. That would raise the question why the protocol was negotiated in the first place. Leaving that aside, I notice that article 31 does not contain such limited language. That article deals with maximum working hours. I hope that the Minister will clarify that the protocol was not negotiated with a view to evading the article 31 rights.
A particularly important question for the labour movement is the purpose of paragraph 2 of article 1 of the protocol, which has been quoted extensively during the debate. It states:
"In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law."
In short, title IV is singled out for a unique provision within the protocol. Title IV, as we know, is the section of the charter entitled "Solidarity" and it contains what we would call workers' rights, such as the right to information and consultation at work, the right to collective bargaining and collective action, protection from unjustified dismissal, fair and just working conditions, the prohibition of child labour, and so on. This provision has never been fully explained in the House. In fact, when the former Prime Minister reported back in his statement of
As I understand it, the existing charter was referred to by the Advocate-General in recent BECTU litigation extending paid holidays to people with less than 13 weeks' service. It is unclear whether this will be possible in future in the British context, or whether any attempts to use the charter in this way would breach the provisions of the protocol stating that charter rights are not
"justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law."
It might otherwise be possible to use charter rights to strengthen existing rights in various areas, including information and consultation. The charter provides that workers or their representatives must be
"guaranteed information and consultation in good time".
On protection in the event of unfair dismissal, the charter provides:
"Every worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws".
On fair and just working conditions, the charter provides:
"Every worker has the right to limitation of maximum working hours".
The information and consultation regulations, the redundancy consultation procedures and the TUPE regulations do not guarantee that workers will be consulted in good time, the TUPE regulations do not protect every worker from dismissal, and the working time regulations do not ensure that every worker has the right to limitation of maximum working hours. The last point was raised by the European Scrutiny Committee of the House of Commons, and according to the Committee, the charter could be used to challenge the implementation of the working time directive, as in the BECTU case.
That might also happen in one of the other member states, but because of the opt-out it may not be possible to mount such a challenge from the United Kingdom, where arguably the need is most acute, given the long hours culture. This gives rise to the possibility that established rights under EC law could have diluted content in the United Kingdom—a view reinforced by the Committee's apparent concern that ECJ decisions on social policy in cases involving other countries could creep into UK law.
Perhaps the fundamental question is whether it is acceptable, especially for a Labour Government, to put workers' rights on a different footing from the freedoms of employers, which are contained in title II and are thus not covered by paragraph 2. I would like to think that the Government will not in future seek to celebrate the way in which they have excluded British workers from protections afforded to European workers, and that they will not make a virtue of this to the CBI and the press. We need to be sure that title IV does not have some kind of separate status from the rest of the charter. I am worried that a clever corporate lawyer might try to argue that, as the protocol states only that title IV cannot create new justiciable rights, by implication title II can therefore do so.
This is an important matter for the Minister to clarify. Many of the counter-arguments that I have heard so far seem to amount to saying that the provision makes no difference whatever. Either way, many of us would also like to hear why such an apparently specific proviso was ever negotiated in the first place and, perhaps more importantly, that workers' rights will not be treated in that way in future.
It is a pleasure to follow the sincere remarks of Jon Cruddas, just as it is to follow the outstanding speech made by my right hon. Friend Mr. Heathcoat-Amory. May I also congratulate the Lord Chancellor on a vintage performance, as he drew on his years of parliamentary skill to move seamlessly from one proposition to a hopelessly irreconcilable and contradictory one? He told us that the charter was a wonderful document, and that British interests lay in being fully protected from it. He also told us that we needed the charter because the European Union had not acceded to the convention on human rights, and that, when it did, we would need the charter all the more.
My right hon. Friend the Member for Wells posed an extremely apt question when he asked why we needed the charter at all. We have a sneaking suspicion that concern for human rights is only a secondary motive, and that the primary motive is for the European Union to put itself in the position of a state. Like a state, it would then have a constitution accompanied by a list of fundamental rights with itself as the guarantor of those rights for its citizens and, again like a state, it would sign up to the European convention on human rights alongside the 47 states that have already signed up to it.
If that is not the European Union's motive, why is the EU framing such a sweeping statement of rights in the charter? Let us remember that the charter will be directly and legally binding for European institutions and member states when implementing Union law. That being the case, why, under chapter I of the charter, do we need to be protected against slavery, torture and execution? Opposition Members sometimes question the activities of the European institutions, but I have yet to hear anyone suggest that we need to be protected against the risk of the European Union imposing inhuman or degrading treatment on us or putting us into forced labour or servitude. Mr. Davey told me that the Liberal Democrats were interested in the charter having full effect in this country, unconstrained by the protocol—perhaps they know something about it that we do not.
Could these proposals also be a pointer towards the day when the EU seeks a more active foreign and security policy? Could the statement of rights serve as a rationale for the foreign policy initiatives that the European Union might wish to take? We need only look at the clauses on foreign and security policy to see the extent of the EU's ambitions in this direction. Could we be looking at the foundation for gradual moves in the direction of a European defence policy and of incipient policing, criminal law and anti-terrorism policies directed towards other states and based on these sweeping assertions of human rights?
It would be a sad day if that were to happen, because the Council of Europe goes much further into Europe and has a much better provenance and a much better history, but who knows just how far the ambitions of the European Union extend in that direction? As far as our Government are concerned, the question is where we stand in relation to all this. As we have heard, the Prime Minister has stated that we were going to have an opt-out or that, if there were no opt-out, the treaty would not extend our laws any further.
There are three points that I would like the Minister to address. First, will the charter be used by the Commission as a basis for proposing legislation in new areas? Will the protocol take effect against new rights in legislative proposals derived from the charter by the Commission? We apprehend that the Commission will take the charter as an inspiration for its policies, because it has said as much in setting out its fundamental principles in the charter. So could the charter indirectly import new rights into United Kingdom law through new legislation derived from it?
Secondly, we are told that the protocol will not allow the charter to extend rights beyond those already recognised in the UK. Let us look at this matter from the opposite point of view from the one rightly adopted by my right hon. Friend the Member for Wells, however, and ask how easy it would be to decide exactly what rights were already recognised here. If a right were already deemed to be in existence here, the European Court of Justice would have full scope to interpret the charter in the United Kingdom. And who would make all the decisions on these matters? It would of course be the European Court of Justice itself.
May I give the Minister an example? Article 49 of the charter sets out a right in respect of the proportionality of criminal offences and penalties. It states:
"The severity of penalties must not be disproportionate to the criminal offence."
Can the Minister tell us whether this is already recognised in United Kingdom law? Do we have the right not to have a disproportionate penalty applied to a criminal offence? If so, will not the European Court of Justice be able to rule on these matters in the United Kingdom in the relevant circumstances when dealing with Union law? Will the Minister tell us whether this right is already recognised in the United Kingdom?
Thirdly, there is an equally important point about the interpretation of decisions taken by the European Court of Justice in member states in which the charter has full effect, and about whether those decisions will have effect in the United Kingdom. We have already heard arguments on this point, but I want to put it to the Minister again because the Government have yet to deny that that will be the case. They certainly did not go that far in their response to the European Scrutiny Committee. Will the Minister tell us whether decisions taken by the European Court in the countries where the charter has full force will be effective in United Kingdom law as part of the acquis of the European Court of Justice—yes or no?
Who has the final right of decision on whether a right already exists in United Kingdom law and how far such a right goes, and on whether decisions relating to other member states will affect this country? The answer is the European Court of Justice, and there is no appeal beyond the Court. Its decision is final on these matters. The House must face up to the fact that we are locking ourselves into a situation in which the final decision will be taken by the European Court of Justice. My right hon. Friends the Members for Wells and for Hitchin and Harpenden (Mr. Lilley) have made extremely valuable points on these matters. Given the breadth of the charter and the rights that it contains, the ambit of the jurisdiction of the European Court of Justice could run very far into matters that we are used to deciding for ourselves in this House.
My right hon. Friend the Member for Wells raised the very apt example of abortion. Article 3 of the charter sets out the right to the integrity of the person. If the European Court of Justice were to interpret such matters that far, they could be decided by that provision. Some constituents came to see me the other day about the Human Fertilisation and Embryology Bill. They asked me how I was going to vote on it, and went through the arguments with me. In future, are we to say to our constituents, "It's all very well you coming to see me, but at the end of the day, these decisions will be taken by the European Court of Justice, not as a result of arguments or votes in the House of Commons but as a result of arguments and decisions put forward by lawyers and judges in the European Court of Justice"? What effect would that have on the standing of this House?
My right hon. and learned Friend Sir Malcolm Rifkind said that he was confident about the health of the European Union and the democratic principle. I have no doubts about the resilience of the European Union, but I am afraid that I do have fears for the health of the democratic principle, both in the European Union and in this country. Let no one in this House be under any illusion about the extent of the authority, power and decision making that they are about to cede to European Union institutions—particularly the European Court of Justice—as a result of the decisions that we are taking this day. We are abdicating an important part of our historical role as the guardian of the rights of the people of this country. We are handing those rights over to another institution over which our voters and the people of this country have very limited, if any, accountability.
Let us be in no doubt about the seriousness of the steps that we are taking today. We cannot know with any great certainty where this will end, but given the history of what has happened to safeguards in the European Union, we have every ground for legitimate fear. We can be certain of one thing, beyond peradventure. I agree with what Commission President Barroso said to the German press shortly after the signing of the outline agreement that we are debating today:
"Lawyers have a beautiful future."
This has been a good and clarifying debate—Members here are few in number, but there have been high-quality contributions from all sides.
Anybody from another country or platform reading this debate tomorrow will understand clearly that, for the Conservative party, only one absolute cast-iron guarantee would ensure that in no wit would the traditional British sovereignty of this House of Commons be placed under threat by anybody outside our island borders: withdrawal from the European Union. I particularly hope that the Conservative winding-up speech will answer the question that I asked about whether the party wants to withdraw from the social chapter. At his annual conference, the leader of the Conservative party made such a statement; the workers and employees of Britain need to know whether that is the policy or not.
Would that much more distinguished forefathers of ours, who sat here, were alive at this hour. I thought that the whole history of the House of Commons was about the extension of rights not only to all citizens of this country, but to people around the world. Wilberforce, Shaftesbury, Emmeline Pankhurst, the people who set up the International Labour Organisation, Harold Macmillan and Duncan Sandys—
I am extremely glad that the right hon. Gentleman is going on a historical journey, because I should like to make this point. What was the most important question raised in the 19th century? It was about the right to vote and democracy, for which people such as John Bright, a member of my family, fought. It is precisely because the arrangements that we are discussing go in exactly the opposite direction, and give power to the European Court of Justice, that I completely reject them.
If the hon. Gentleman cares to examine what John Bright and his great friend Cobden did, he will find that they were huge supporters of free trade and rightly argued for international institutions that would open countries up to it. However, we cannot have good words and nice policies unless we have a mechanism of enforcement, and since day one of the European Economic Community, the European Court of Justice has been that enforcement mechanism. I fully accept the points made by my hon. Friends about the Laval and Viking cases, but on balance the Court has been good for workers and for Europe. If we adopted the Opposition amendment, we would throw out the proverbial European Court of Justice baby with the bathwater of the whole European Union.
We have heard some remarkable language in this debate. Mr. Lilley talked about a foreign jurisdiction; actually, a British judge serves on the Court. Furthermore, the World Trade Organisation is a foreign jurisdiction—any treaty organisation into which we freely enter and whose adjudicating panel's or Court's binding rulings we accept is a foreign jurisdiction. For heaven's sake, I thought that Britain wanted to extend the concept of the rule of law globally and internationally into as many different areas as possible.
In saying that we should be bound by the rulings of the European Court of Justice, is not the right hon. Gentleman making it clear that the protocol is worthless?
I shall come to the protocol.
The Conservative party refuses to come to terms with a fundamental issue: the rights in the fundamental charter of rights are those for which Britain has fought and struggled to lay down in different binding conventions. Many are in Council of Europe conventions, into which we freely enter. It is preposterous to say that we accept legal rulings from the Council of Europe and the European Court of Human Rights, but that we do not want them to be applied in the European Union through the European Court of Justice.
As the right hon. Gentleman knows, there has been a lot of debate about whether we should have a home-grown Bill of Rights; indeed, his Government are interested in the idea. I have heard Ministers say repeatedly how undesirable it would be to have a rewording of the European convention on human rights in our own Bill of Rights, because that might lead to future conflict. However, is not exactly that proposed by the adoption of the charter of fundamental rights? It does very much the same thing.
The hon. Gentleman has a fair theoretical point. In all these debates, I feel at times like William Blake when he wrote:
"Both read the Bible day and night
But thou read'st black where I read white."
We all take our different interpretations from the common text in front of us. For example, we had some discussion about the relationship between the ECJ and the Strasbourg Court—I shall call it that for the sake of shorthand—on the question of Gibraltar. This sovereign House of Commons denied the people of Gibraltar their right to vote in European Parliament elections. When they fought and struggled for it, it was the Spanish Government who took the issue up with the European Court of Justice. However, the Gibraltarians had already gone to the European Court of Human Rights and the ECJ accepted the superiority of the ECHR on that matter. We then legislated to allow Gibraltarians to vote in the Spanish regional constituency of the European Parliament. There will be that tension; of course there will.
The right hon. Member for Hitchin and Harpenden gave a marvellous example of the Court backing away from an alarming ruling that would have damaged Europe's standing in Britain before the Bill on the Maastricht treaty—I would have thought that how that Bill was handled did quite enough damage to Europe's standing in Britain, but no matter. Such dynamisms exist. To take an example, each country has highly specific national sets of labour rights. In Germany, 1.5 million Beämtern—full-time public employees—have no right to strike under the German constitution. That cannot be changed by reference to the right to strike in the European charter of fundamental rights because the horizontal national protection language written into it was put in at the behest of Germany.
France has a completely different approach on issues such as minimum service in the event of strikes. In France, only five trade unions are recognised to sign contracts. Even if a 500,000-strong union went on strike every day, it would have no legal existence under French law. That will not be altered. To that extent, I agree with the points made about the protocol. It is a strengthening of the horizontal provisions in the charter of fundamental rights, but it is not an opt-out. The decision was made to go down that road for political reasons.
I am happy to say in the House of Commons—I have said it to colleagues—that the political price paid was very high, given how alarming and upsetting it was to trade union friends. I have exchanged correspondence with Mr. Lambert, the director general of the CBI, on the issue and I think that having extracted that, the CBI had a duty to reciprocate and campaign for the ratification of the treaty in Parliament. It has not done that; it was given the works, but has not put much back on the table. That is just a private point—the CBI behaves as it behaves.
Several Labour Members have spoken about their fears and concerns. My right hon. Friend Mr. Meacher is not here, but he described the European Union as a neo-liberal project. I do a little speaking here and there at international economic conferences in Europe and elsewhere. At meetings in America, and at some of the more business-focused meetings in Europe, the European Union is regarded as a bunch of communist, lefty social-welfarists. It is thought that we in the EU, far from being neo-liberals, are far too soft on social matters. Perhaps my right hon. Friend should read article 2 of the new treaty, which says:
"The Union shall establish an internal market...aiming at full employment and social progress...It shall combat social exclusion and discrimination...shall promote social justice and protection."
Article 8B states:
"The institutions shall...give...Representative associations"— that is, trade unions—
"the opportunity to make known and publicly exchange their views in all areas of Union action."
No other arrangement in the world writes into the language at the very top of its articles of association—in this case, the treaty—the commitment to promoting social justice and protection.
As an ex-trade union official, I fully agree that much of what I see is not entirely to my liking. The European Court of Justice has, on the whole, been positive for workers and employees. Only last week, it gave a ruling—not a full decision—on the rights of employees in Britain to be able to look after handicapped children. Some vicious, ugly firm refused a mother the right to go and look after a handicapped child, and the case went up to the European Court of Justice, which has said that employers should behave properly. We can look at provisions under the Transfer of Undertakings (Protection of Employment) Regulations 1981 and some of the rulings on working hours. We can look at—this is a matter of deep concern to me and my constituents—the rulings on the pensions stolen from steel and engineering workers, where, again, a ruling from the ECJ has forced our Government, rather late in the day, to step up to the mark and provide justice for those workers.
The Swedish case could be solved if Sweden had a statutory minimum wage. The German Social Democratic party is now dropping its opposition and going in that direction. This is not a nirvana of high wages, but it writes into a national legal obligation what the ECJ then cannot rule against. We should be careful about objections to the country of origin principle. When I was Minister for Europe, one of my most pressing problems was trying to get European law applied to British citizens working in different countries who found all sorts of little social protectionist rackets that stopped them having full title, full salary, full pensions and the rest of it. I want to see an open European market, a socially just market in which British citizens have full rights. We must be careful that what is sauce for the British gander in terms of social protection is not used against it.
I must finish by dealing with the absurd complaint that judges are not accountable to electorates. They are not so in this country; they are not so anywhere. The very concept of justice is based on separation of powers. The Conservatives want a European Union from which it can pick and choose the bits that it wants to support. The gist of the speech by Sir Malcolm Rifkind was, "Let others go further forward, but we can stop where we are." I do not particularly dissent from that, but believe me, if we want to pick and choose what we like, then other countries can say, "We don't like Ryanair and easyJet landing", or "We don't want the environmental rules that Britain is fighting for to be applied to our nation." If we want Britain to have an effect and a voice in the European Union, we have to accept that in relation to other countries.
I have taken two interventions and that is my maximum.
I sincerely invite my right hon. and hon. Friends who have spoken critically—I understand where some of that comes from—to reflect carefully. There is a global neo-liberal agenda to destroy Europe, to remove such protections as currently exist, to talk down the right of social protection, and to say that rights are not universal but defined simply by the employer and capital against the human being. That is why I hope that the Government will be supported tonight, and that is why the world, reading this debate, will realise how deeply reactionary and regressive today's Conservative party is in turning its back on its history of supporting international rights.
The debate and the detailed arguments on both sides once again prove exactly how constrained we are in having to fit our deliberations into the straitjacket of the timetable motion that the House passed last week. Moreover, later on, the detailed discussion in Committee will be shoehorned into just one and a half hours.
I listened carefully to the Lord Chancellor's opening remarks and to other contributions, but I must confess that I remain confused about exactly what the charter of fundamental rights brings to the table. The Government seem keen to argue that it brings nothing new and that there are no new rights, which is in line with their negotiating position when they argued against the charter having legal force. However, as we have heard, the European Commission makes it clear that new rights will be in force. If that is not the case, I hope that when the Under-Secretary of State for Justice, Bridget Prentice, winds up the debate she will confirm that tomorrow a letter will be winging its way from the Lord Chancellor to the European Commission to point out that the information on its website is incorrect and there are no new rights. If that letter does not find its way there, with a placed copy in the Library, we will know that the Minister agrees that there are indeed new rights. As my right hon. Friend Mr. Heathcoat-Amory said, there is at least one new right—an unlimited freedom for scientific discovery. During that discussion, we discovered that the Liberal Democrats are very keen on unrestricted scientific experimentation, which will disappoint those who care about animal welfare.
During the negotiations on this part of the European treaty, the Government made it clear that they were unhappy with it, and it is worth putting one or two of those comments on the record. Baroness Scotland, speaking for the Government, said that making the charter binding was
"not desirable because a text incorporated into the treaties"— my right hon. Friend the Member for Wells made it clear that the charter is an integral part of the treaty with exactly the same legal force as the rest of it—"requires legal precision." She continued:
"The charter uses a breadth of language well suited for a political declaration".—[ Hansard, House of Lords, 29 November 2000; Vol. 619, c. WA142.]
Mr. Hain said, when speaking on this matter,
"the people who say that it is a great idea to have a charter of rights do not seriously appreciate what the implications would be if it were incorporated wholesale in the treaty...My right hon. Friend the Foreign Secretary has made it absolutely clear that we shall not do that...people want a charter of motherhood and apple pie at one level, but are not willing to recognise what full incorporation would signify."—[ Hansard, 18 June 2002; Vol. 387, c. 244.]
That is important. The scope of the charter means that several articles are very broad and have potentially significant effects on the rights of this House and of our democratic structure.
One or two Members have drawn attention to article 3 on the right to integrity of the person, which could affect abortion law. My hon. Friend Mr. Clappison referred to the Human Fertilisation and Embryology Bill, which will be debated in this House when it has finished its passage in the other place. We know that many of the votes on that legislation will be free votes for Members of this House because they are on conscience matters, and we know about the passions that will be engaged in our constituents on several of those important issues. My hon. Friend made it clear that it will not be a forward step if decisions on issues such as abortion are taken out of the hands of this House and given to unelected judges.
In that case, what is the purpose of having this article in the charter? If it will have no effect and the Court will not use it to change reality on the ground in any of these countries, what on earth is the point of it, and if there is no point to it, why on earth are we effectively putting it into British law?
Some other incredibly important articles could have a huge impact on our domestic policy. Article 21 of the charter states that there should be no discrimination on the grounds of nationality. That is not limited to European states, as I read it; it means that there should be no discrimination on the grounds of nationality at all. That will have a huge impact on and wide-ranging consequences for our benefit system and our tax system. Again, it might transfer huge amounts of power from this House—people accountable to our electors—to judges. What Mr. MacShane said about all judges not being accountable is not entirely true. Many judges in the United States are accountable because they are elected, so they have to listen; that is not a very good idea. I do not want people who have to worry about what electors think to make decisions in criminal cases. The right hon. Gentleman made that point about judges and it is not true.
I do not want us to give rights and powers to take important decisions that should rest with this House to people who are not elected and are unaccountable. The right hon. Gentleman raises his eyebrows, but that is what the charter does. If it does not, it has no effect at all, in which case there is no point in bringing it into law. The Lord Chancellor seemed to be trying to have it both ways, as was ably pointed out by my hon. Friend the Member for Hertsmere.
I draw hon. Members' attention to article 50, which is the right not to be tried or punished twice in criminal proceedings—the double jeopardy principle. The UK Government have already amended the rules on that, and one can take one's own view on it—it would allow the killers of Damilola Taylor to be brought to justice—but such a decision would not be possible if that article were enforced. Such decisions are matters for this House, and for Ministers who are accountable, but we will be handing those decisions over to people who are not accountable.
Finally, I would like to pick up the point that my hon. Friend the Member for Hertsmere finished on. From discussions over the past few weeks we have seen the regard in which hon. Members are held. People will only turn out in elections when they think that there is something significant at stake. We saw that in the French presidential elections, where there was a clear choice between the two candidates and turnout reached 80 per cent. I suspect we will see something similar—perhaps not as high as 80 per cent.—in the US presidential election this year. There will be a clear choice. We have already seen a significant number of voters turning out in the Democratic primaries who have not turned out before. The people they are electing can make a real difference and there is a real choice to be had.
In this country, we have seen turnout decline. I hope that voters will think that there is real choice at the next general election and that there will be a competitive election in which turnout goes up. But if electors think that the decisions they take in those elections and that the people—and the Ministers—they send here are increasingly unable to alter either the way in which our laws are made or the direction of our country, they will become even more disillusioned. They will not come and talk to us, they will not vote in elections and they will increasingly turn their attention to hiring lawyers and fighting cases in front of the European Court of Justice. That would be not a welcome step but a retrograde one. It is exactly what will happen if we cede these powers, which is why I want the House to support the amendment standing in the name of my right hon. and hon. Friends.
I am very happy to follow Mr. Harper, whom I have not caught speaking in the House before; nor have followed a speech of his. I will read his other speeches with some attention to see whether his views are as consistently right-wing as they have been this evening.
I have no problem in supporting the Government in the debate about this aspect of the treaty. I have no fear of the European Union. I respect the views of those who also serve on the European Scrutiny Committee, but sometimes I worry about the tenor of the contributions of Mr. Heathcoat-Amory. They show a paranoia about the institution of the EU, which, despite the views we may have about these elements of the treaty, or the future position of the European Court of Justice, has not done any damage to the good people of this country. That is the truth of it. Nor has it done damage to the place where we live. We live in a Union of half a billion people.
No, I am not going to take interventions, because I hope to leave more time for the winding-up speeches than I would if I took my full 12 minutes.
What does the charter of fundamental rights say to anyone? Who is interested in it, and who is afraid of it? I will tell hon. Members who is afraid of it: the person who stood as the presidential candidate in Serbia, who would have taken that country back under the influence of Russia. It was what the charter of fundamental rights and the European Union stood for that won the election in Serbia for those who want to get closer to the EU and, we hope, join it, alongside other former parts of the fractured former nation of the Republic of Yugoslavia. I have no fear of what the EU holds out to our citizens, as well as to others.
I would like to talk about what the treaty does, with reference to the consolidated texts of the EU treaties as amended by the treaty of Lisbon. For example, article 3 has been referred to by the National Society for the Prevention of Cruelty to Children as representing a fundamental move forward. Paragraph 3 of article 3 says that there will be
"solidarity between generations and protection of the rights of the child."
Paragraph 5 refers to
"eradication of poverty and the protection of human rights, in particular the rights of the child".
That is the first time such a provision has been put down in the laws of the EU. It is an important matter because we saw in Romania the terrible sight of children chained to potties on stools in the so-called children's homes that existed there before that country entered the EU. If such conditions alone are ended by the treaty, it is one worth signing.
Article 6 refers to the charter of fundamental rights, which is important because it shows that it is central to what the European Union will be about. Paragraph 3 of article 6 says
"Fundamental rights...shall constitute general principles of the Union's law."
How can we be afraid of that? Articles 145 to 150, under title IX, "Employment", deal with employment rights. I cannot see how anyone can object to a treaty that includes such provisions which will be binding on all nations. My hon. Friend Jon Cruddas spoke about the difficulties of Latvia and Sweden, which did not have an understanding with regard to how people have common rights that transfer across the Union.
I come to article 153—the original article 137 of the treaty—under title X, "Social Policy". For the benefit of those who want to read our debates, and I hope that many will, I want to put on the record what that article says. It refers to
"(a) improvement in particular of the working environment to protect workers' health and safety;
(b) working conditions;
(c) social security and social protection of workers;
(d) protection of workers where their employment contract is terminated...;
(f) representation and collective defence of the interests of workers and employers, including co-determination...;
(g) conditions of employment for third-country nationals legally residing in Union territory
(h) the integration of persons excluded from the labour market"— we are always talking about integration, and wondering about the 2.7 million people who are on incapacity benefit, and why that figure has grown from several hundred thousand—
"(i) equality between men and women with regard to labour market opportunities and treatment at work;
(j) the combating of social exclusion;
(k) the modernisation of social protection systems without prejudice".
Those points are not just in the charter of fundamental rights, but in the treaty. They are things worth voting for, and I hope that we will do so.
Everyone says that it is all about the European Court of Justice—this big bad organisation that will somehow take decisions from a malicious point of view. As my right hon. Friend Mr. MacShane pointed out earlier, its judgments normally are on the fair side of the equation and are not made in a malicious way that is disadvantageous to the people. Mr. Clappison, my colleague on the European Scrutiny Committee, says that there is no right of appeal. We know of a case that came before the Committee, concerning a journalist from Belgium. His house was raided and his equipment taken because he had put out a story about corruption in the fraud office of the EU. He went to the European Court of Justice and lost. He then went to the European Court of Human Rights and won. He got €30,000 in compensation and his costs paid. The court found against OLAF, so there are places to which one can go in the European Union if the European Court of Justice denies one's human rights. That is why human rights are so important and central to the Bill.
The charter of fundamental rights is an important document. Somebody asked why it was not a single document—it is. Here it is—I am holding up the charter. Anyone can get a copy—it is readable, accessible and says some things that we should be proud to state about the European Union of which we wish to be part. Those things will be law once the treaty is passed.
Ministers have said that the charter contains nothing additional, but it does. According to the Law Society, which analysed it purely from a legal point of view, it
"contains many rights similar to those set out in the ECHR, in addition to further rights and principles already recognised in EU law."
The rights will be additional but they are already in EU law. However, the article continues:
"Until now the Charter has had no binding effect, but this will change as a result of the Treaty of Lisbon."
The charter will be binding, and I find that attractive for reasons that I will outline. Article 4 of chapter I is entitled, "Prohibition of torture and inhuman or degrading treatment or punishment". Such a prohibition may not exist in some countries that might be considering joining the European Union. Holding up as a flagship guarantee a provision that people cannot be abused, tortured or punished inhumanely by their Governments will attract people to share our view of Europe, rather than that which some other regimes currently hold.
Article 5 of chapter I prohibits forced labour and people traffickers. Article 10 of chapter II is entitled, "Freedom of thought, conscience and religion". That is very important. Article 23 of chapter III deals with gender inequality and article 24 is entitled, "The rights of the child". Those are fundamental matters in a charter of which we should be proud. Surely hon. Members approve of article 25, about the rights of the elderly and article 26, about the "Integration of persons with disabilities".
In chapter IV, articles 27 to 33 deal with employment rights, including family and maternity rights, and the rights that my colleagues who spoke about employment law discussed.
Chapter VI contains articles 47 to 50 and includes article 48, "Presumption of innocence and right of defence". That seems to me to be an anti-sharia law article because people are not presumed innocent under sharia law. People are presumed innocent under our law in the EU and that is fundamental, especially when considering some of the jurisdictions that want to join the Union, which take a different view about whether sharia or EU law should apply.
In chapter VII, article 53 protects fundamental freedoms and article 54 deals with the prohibition of abuse of those rights. We should include all such provisions in anything that we wish to become the law of the EU. Indeed, they are a part of EU law.
Some hon. Members have asked why we should have a protocol when, in the European Scrutiny Committee's judgment, it did not have any of the opt-out powers that were originally discussed. As early as July, the Government began to admit that we were right and that the protocol did not constitute the opt-out that was originally intended. Paragraph 28 of our third report of the 2007-08 Session, which was published after taking evidence from Ministers, states:
"It seems to us that a judgment of the ECJ interpreting a measure of Union law in a case brought in another Member State would form part of the body of Union law which the UK courts would be obliged to follow in the UK so as to ensure the consistent application of Union law throughout the Union."
We believe that that is the correct interpretation. If there were such judgments on the working time directive, that on agency workers and others that were mentioned, which are part of EU law and in the charter, I believe that they would be binding in this country as well as in others.
Sir Malcolm Rifkind was correct when he said that we kept emphasising to the Minister—Mr. Cash especially pressed the matter—that the only way in which the charter would not apply would be to pass a protocol, which would take effect, "notwithstanding the treaties or Union law generally". If Union law generally and the treaties are binding, the charter is also binding.
I believe that that is a good thing. I repeat that I am worried that the trade union movement has reacted so badly to what appeared to be a signal—a flourish—to the CBI that somehow we would not grant the same rights in employment law to everyone. If we rejected the treaty, we would deny the charter to every other country and trade unionist in Europe. Some need it much more desperately than our unions. It is a question of solidarity. The trade union movement should not be afraid of the impact on human rights or workers' rights through accepting the treaty, for which I shall vote.
I shall speak briefly, partly because I do not have much time. I will have an opportunity to say more later. Following the speech of the Chairman of the European Scrutiny Committee allows me to say that my concern is that he is right, because the Committee has examined the position and been through an enormous number of other legal authorities. There is no doubt that the advice that the European Scrutiny Committee has given Parliament is valid. If matters continue the way they are, the Government, who believe—probably not sincerely because they did not want the charter in the first place—that they are managing to put a roadblock in the charter's way, will end up having to accept it.
Conservative Members take a different view, which is that the charter should not apply in any event. When we consider amendments in Committee later, I will explain the way in which my amendments can help the Government to achieve their objectives. I may comment on other amendments, too. However, the bottom line is that Conservative Members are united on one central principle: we do not believe the Government's line that their actions can prevent what we fear from happening. We all agree that our argument stands up in the interests of the people whom we represent. There is unity among Conservative Members about that, but we have a slight problem that we must resolve in the next one and a half hours.
I do not need to add any more until I get to the nub of the issue, and the nuts and bolts, which I will explain when we discuss amendments. I am extremely grateful for a marvellous opportunity to speak for one minute more than I did on the previous occasion.
The brevity of my hon. Friend Mr. Cash always comes when he makes those points with which I most agree. He is right in his analysis of the debate. It is extraordinary that the quality of the debate rose dramatically when the Lord Chancellor sat down. Until then, we were treated to a characteristic campaign of explanation that the charter was a wonderful, innocuous document and that those who could not appreciate its merits suffered from the usual Conservative paranoid delusions about its content.
We had to wait until the end of the debate to hear Michael Connarty, who correctly analysed the pros and cons of the changes that the Lisbon treaty will effect. I am only too eager to debate that. We know from listening to the debate between hon. Members in the same political parties that the subject can provoke interesting discussion on a topic of great importance for this country's future. The Lord Chancellor—and Government Front Benchers generally—does not want anyone to realise that that discussion is happening. If I have a complaint about the process of these debates, whether today's debate or last week's debate on criminal justice, it is that those on the Treasury Bench reduce the issues to a series of facile soundbites and show an unwillingness to engage, but then complain when the public exhibit what they describe as "signs of paranoia". I have to say that I might start to become a bit paranoid if I saw individuals systematically attempting to obfuscate and missing the point so much.
We had a good debate once the Secretary of State had sat down, first with a speech from my hon. Friend Mr. Lidington. Then Mr. Dismore made an important contribution on the role of the charter, which in his view is innocuous. I disagree with him about that. The reason, which I mentioned in my intervention on Mr. MacShane, to whom I shall return, is that we have to ask ourselves what the charter's purpose is. Let us forget about our protocol for a moment, and ask why the charter is there and what it is designed to achieve.
To respond to the hon. Member for Linlithgow and East Falkirk, my problem with the charter is, first, that it has been placed at the heart of an institution whose primary purpose is not the promotion of human rights. That was picked up in a series of comments, including those of the hon. Members for Elmet (Colin Burgon) and for Hemsworth (Jon Trickett), and Mr. Meacher, all of whom raised their deep concern about the extent to which the European Union's agenda might be harmful to some of the social policy issues that they want to promote. I do not want to get involved in the detail of that debate, but they were right to highlight the potential impact of European Union laws and policies in areas of concern to them. Again, the Government's unwillingness to engage with the issue troubles me very much, because it is plainly relevant to how the European Union develops.
I return to the point that we have in the European convention on human rights a document that commands total acceptance in all parts of the House, to which all European countries that are members of the EU are adherents and which provides a well established formula for defining human rights, in wording that is different from the charter of fundamental rights. The point is not just that the charter has extra text covering rights that are not covered by the ECHR—that might be an interesting topic of debate—but that the wording is different. If the Government are so insistent, in their project to introduce a new Bill of Rights, that they are going to keep the ECHR text within the Human Rights Act 1998 because they do not wish to differ from it, that prompts the question, which remains unanswered: why are they so comfortable with the European Union doing the very thing that they do not wish to see done domestically? I hope very much that the Minister will rise to the occasion and deal with that point.
Do I understand from what the hon. Gentleman is saying that he now agrees with the point that I have made repeatedly, which is that it is unhelpful to have two forms of human rights legislation and wording that are independently justiciable?
The hon. Gentleman makes a good point. The situation raises difficulties of interpretation. I am not saying that there are no arguments to the contrary; what I am saying is that the Government should say why the arguments that they have put forward in the context of a potential domestic Bill of Rights, which they have indicated they wish to introduce, apparently do not need to be considered in the context of the charter of fundamental rights. As yet we have received no answer whatever to that question, because the debate has, I am afraid, so frequently been reduced to such facile levels.
The second issue is the protocol and the impact of the charter of fundamental rights on our national legal and parliamentary processes. The Government negotiated the protocol for some purpose. However, having listened to what those on the Treasury Bench have said on the matter, one begins to think that the protocol is merely a fig leaf, whereas it was originally sold as a protection. The protection that the Government wanted concerned their anxiety to persuade the public in the UK that the charter could not be used to have an impact on, effectively, domestic legal areas.
As European law is expanding—one of the purposes of the treaty of Lisbon is for that to happen—and moving into, for example, areas of crime and justice, which we debated last week and on which I disagree most profoundly with what the Government are allowing to happen, it must be inevitable that the charter of fundamental rights will apply even in crime and justice areas that fall within the European Union's remit, if the Government opt into any of them. Again, we have yet to hear any explanation from the Lord Chancellor or the Minister of how the Government think that will operate in practice. If the protocol is in fact worthless—as in my view it is—there will be instances where the European Union and the European Court of Justice will use the charter of fundamental rights to affect the development of UK domestic law in areas such as criminal justice to which we have opted in. It may be argued that that is a good thing; indeed, some Government Members, and certainly Liberal Democrat Members, seem to think that that would be a good development. However, the issue at least merits some debate, which is the very thing that we have not had from the Government.
I am concerned about the operation of European Court of Justice in this context. It is difficult to know exactly how that will develop, but in view of the architecture of the treaty of Lisbon, it is certain that the potential for decisions of the European Court of Justice, based on the charter, to intrude on our domestic law is real and cannot be ignored.
I want to hear the Minister's answers to those questions. I am sorry that this debate is so characteristically short. I simply say this to the Government: they have failed to make the case. Once again, the House and the country are being asked to accept a series of major changes that have not been properly debated, analysed or thought through.
This has been a fascinating debate, although facile in parts; Mr. Grieve perhaps ought to look on the Benches behind him for that adjective. I commend the passion that has been expressed in all parts of the House and thank the Chairmen of the European Scrutiny Committee and the Joint Committee on Human Rights for their contributions. I should like immediately to apologise to the House for being unable to answer all the questions thrown up in this four-and-a-half-hour debate, but I hope that my hon. Friend the Minister for Europe will address some of them in the following debate on amendments to the Bill.
I start by asserting our pride in our provisions on human rights and stressing again that the human rights provision contained in the Lisbon treaty, particularly the charter of fundamental rights, will ensure that the European Union is committed to the protection of human rights without infringing on the sovereignty of member states. The charter is not, and was never intended to be, a source of new enforceable rights. The 1999 Cologne European Council, which started the work of the charter, was very clear in its conclusions:
"The European Council takes the view that, at the present stage of development of the European Union, the fundamental rights applicable at Union level should be consolidated in a Charter and thereby made more evident."
The aim of the charter in 1999, as in 2008, was to make the fundamental rights and principles shared by member states more visible by condensing them in a single document. The level of protection of fundamental rights across the Union was never intended to be, and cannot be, changed by the charter, for the simple reason that the charter reflects only existing rights already recognised in the Union, which in some circumstances do no more than restate—and are subject to—domestic legislation.
During the negotiations, the Government successfully agreed a package of safeguards clarifying the scope and interpretation of the charter. Four measures in particular have been established: the new wording of article 6 of the treaty on European Union, the charter's horizontal articles, the official explanations accompanying the charter and the binding protocol on the charter.
I shall deal with some of those items in detail, but first let me reassure my hon. Friends the Members for Elmet (Colin Burgon), for Dagenham (Jon Cruddas) and for Hemsworth (Jon Trickett), and my right hon. Friend Mr. Meacher, who raised important issues about the Laval and Viking judgments. The legally binding charter and the protocol will not affect the European Court of Justice case law in those cases, in which the ECJ held that the right to take collective action was already part of EU law, as reflected in article 28 of the charter. That right, however, is subject to national laws and practices. The protocol does not reduce or limit charter rights; it simply makes clear how they apply.
The amended article 6 of the treaty on European Union, new article 6(1), clearly states:
"The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties."
Order. Conversations are breaking out throughout the Chamber. The House ought to do the Minister the courtesy of listening to what she is saying.
I am grateful to you, Mr. Deputy Speaker. As I was saying, article 51(2) of the charter states:
"The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties."
The horizontal articles in title VII of the charter, especially articles 51 and 52, define the field of application, scope and interpretation of the charter. They clearly state that the charter is aimed at EU institutions and member states only as they are implementing EU law. In addition, the official explanations, which indicate the source of the rights and principles contained in the charter, have been published together with the charter in the Official Journal of the European Union. I have already mentioned article 6, which states that due regard must be given to those explanations. By setting out the sources of and limits of the provisions in the charter, the explanations show that it does not create any new rights, but simply reaffirms rights that are already recognised in the law of the Union and in member states' own national laws.
The combination of those three measures—the wording of article 6, the horizontal articles and the official explanations—makes the charter's scope and interpretation absolutely clear. However, we listened to concerns expressed about, in particular, the charter's alleged interference with United Kingdom labour and social laws, and for the avoidance of any doubt we negotiated a fourth safeguard. It consists of a binding protocol, originally proposed by and for the United Kingdom but later extended to Poland. My right hon. Friend the Lord Chancellor went into some detail about the content of the protocol, and I shall not repeat what he said.
Perhaps the Minister will answer a question put to the Lord Chancellor that he did not really address. If a country that does not have the benefit of the protocol takes a case to the European Court of Justice, which, on the basis of the charter, makes a decision, why will that decision not become part of EU law, and therefore applicable to the United Kingdom under our general EU treaty obligations?
If I may say so, the Minister has not answered the question that she has just been asked. It was a very specific question, to which, surely, the only answer can be that in such circumstances the protocol provides no protection whatsoever, because the charter will have been applied in this country through its incorporation in European Union law in a decision concerning another country.
Again, the hon. Gentleman's premise is false. No new rights have been created. Let me say to him, and also to Sir Malcolm Rifkind and the hon. Member for Aylesbury, that the protocol's meaning and wording are very clear and that it is legally binding. It puts beyond doubt the fact that the charter simply cannot extend the powers of the courts to strike down UK laws, and that it does not introduce new justiciable rights.
My hon. Friend Mr. Dismore said that the ECJ would be subservient to the European Court of Human Rights, and he is absolutely right. The Court's primacy in setting European rights and standards remains. Mr. Davey said that we had a great story to tell on human rights, and that we should tell it loud and clear. I agree, and on that basis I commend the motion to the House.