With this it will be convenient to discuss the following: Amendment No. 217, page 1, line 12, after 'excluding', insert—
Amendment No. 85, line 12, after 'excluding', insert—
'(i) Article 1, paragraph 9, amendments to Article 7 TEU relating to breach of principles; and
Amendment No. 125, line 12, after 'excluding', insert—
Amendment No. 129, line 12, after 'excluding', insert—
'(i) Article 2, paragraph 34(b) to (d), amendments to Article 17 TEC (TFEU) relating to the rights and duties of citizens of the European Union; and
Amendment No. 194, line 12, after 'excluding', insert—
'(i) the Protocol relating to Article 6(2) of the Treaty on European Union on the Accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms; and
Amendment No. 196, line 12, after 'excluding', insert—
'(i) the Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom; and
Amendment No. 228, line 12, after 'excluding', insert—
'(i) the Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom—
(a) Preamble, tenth paragraph stating that references in the Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter; and(b) Preamble, twelfth paragraph stating that the Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally; and
Amendment No. 229, line 12, after 'excluding', insert—
'(i) the Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom, Preamble, eleventh paragraph stating that the Protocol is without prejudice to the application of the Charter to other Member States; and
Amendment No. 203, line 12, after 'excluding', insert—
'(i) the words "Title IV of" in paragraph 2, Article 1 of the Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom; and
Amendment No. 27, line 13, after second 'to,' insert—
'(i) the Charter of Fundamental Rights; and
New clause 6— Disapplication of the Charter of Fundamental Rights—
'Notwithstanding any provision of the European Communities Act 1972, nothing in the Charter of Fundamental Rights of the European Union of December 7th 2000, as adapted at Strasbourg on December 12th 2007, shall be binding in any legal proceedings in the United Kingdom and shall not form part of the law applicable in any part of the United Kingdom.'.
New clause 12— Charter of fundamental rights—
'For the avoidance of doubt, no decision of the European Court of Justice which is based on any application of the provisions of the Charter of Fundamental Rights of the European Union to interpreting or applying the law of the European Union shall have any force of law or effect in the United Kingdom.'.
I am extremely grateful and honoured to be able to lead the debate on this subject. In the previous debate, we demonstrated the enormous gulf between us and the Government and, furthermore, the gulf between the Government and reality. Last night, I watched a fascinating programme on the history of the atom. It contained things that I almost could not understand, but one thing I grasped was that according to those enormous brains—Mr. Feynman, Mr. Gell-Mann, Mr. Dirac, Mr. Einstein and all the others—there is a notion of virtual reality.
The Government have that notion in respect of the charter of fundamental rights. It is absolutely clear from the European Scrutiny Committee report and from other eminent analyses by significant and interesting lawyers that there is no doubt that the charter of fundamental rights will be made applicable in the UK sooner or later by the European Court of Justice. It will catch up with the Government, just as the working time directive caught up with us despite my attempts to get my Government to understand in the 1980s that that would happen. Why was I right? It was not because of any stroke of genius, but simply because I know the ways of the ECJ.
It is interesting to remember that the Government were opposed to the provisions in the charter of fundamental rights being applied through the treaty and the protocols, and it is equally true that they have tried to put up various roadblocks. I do not think that they have succeeded. Thanks to the European Scrutiny Committee, their cover has been blown.
I fully support my hon. Friend's amendment, but will he expand on why it is so important? Many of my constituents despise the Human Rights Act 1998, but we could repeal it. If the charter of fundamental rights is incorporated into our law, does he agree that it will be binding and that Parliament will be able to do nothing to alter its provisions?
One of the wonderful things about this House is that one can almost guarantee that another hon. Member will intervene to make the point that one was about to make. In this instance, however, I am glad that it happened. These are very important matters and, although almost no one outside is interested in our debates, there is no doubt that, in due course, people will complain bitterly about the Government's approach. It will become the conventional wisdom that the Opposition were right and the Government wrong. We are trying to keep ahead of the curve on these matters: in the national interest, we are trying to stand up for the people of this country, and their rights.
I always listen to the hon. Gentleman carefully, as what he says is important. However, although the Opposition have made clear their unhappiness with the Government's policy, they have not said what they would do differently or how much further they would go. It is sad that people outside are still not being told what the alternative is to Government policy, or what could happen instead.
I accept what the hon. Lady says but, if I may be allowed to say so, I do not put myself in the category of those who have not been persistent in these matters. I have made completely clear my desire to achieve clarity about the treaty.
In a moment, if the hon. Gentleman will forgive me. I was just about to mention the origin of the human rights legislation, a subject in which I know he has a great interest.
The legislation began with the universal declaration of human rights in 1949, which I have studied in depth. The distinguished Lebanese jurist Mr. Malik was the rapporteur, and his reports placed enormous significance on the rights of the individual. There was a huge battle between him and Mr. Topialeck and the other Soviet representatives, who were trying to put their version of the declaration.
There is no time to go into the details, but the four freedoms that were agreed did not include democracy. In contrast, I believe that democracy is the first freedom, because all else follows from it. That is what I am concerned to insist on in these debates, because democracy means that my constituents have the right to decide in a general election what sort of Government they want and what laws are applied to them.
I am grateful to the hon. Gentleman for giving way, but I seek clarification about where the Opposition stands on these matters. In earlier debates, Mr. Grieve made it clear that the Conservative party, along with the rest of the House, supports the European convention on human rights. However, Philip Davies said in an earlier intervention that he despises the Human Rights Act 1998, which incorporated the ECHR into UK law. Will the hon. Gentleman clarify where he stands on that issue?
It is very simple: when I was shadow Attorney-General, I proposed the repeal of the 1998 Act. I am glad to be able to say that that is now my party's policy, and I trust that it will remain so. I shall go further and say that I have the gravest reservations about how the ECHR has impinged on the essential question. I would fight to the death to defend the rights themselves—and my own father died for that cause in the last war—and the proposition that decisions about the rights enjoyed by people in this country should be made by this Parliament. However, I would also fight to the death to ensure that they are not made in the abstract, according to principles put forward and adjudicated by an unelected European Court of Justice.
Will the hon. Gentleman confirm that it is his policy, and perhaps that of his party, that Britain should withdraw from the convention on human rights? If that is not his policy, will he confirm that repeal of the Human Rights Act would simply mean that any UK citizen who wanted to enforce the convention on human rights would have to go to the European Court of Human Rights—the situation that existed until the Human Rights Act repatriated the law so that British citizens could go to British courts to enforce their rights under the European convention? Where does the hon. Gentleman stand on those questions?
I am happy to commend the right hon. Lady to people on her side of the equation; as in the earlier debate, she put the arguments from her point of view as well as they could be put—which is not very much. I really believe that the point I have just made, and which my right hon. Friend Mr. Lilley made in his speech on the motion, is very important: we operate, and have always operated, not on the basis of a written constitution or the abstract principles so beloved of—if I dare say it—the Socialist International and all that goes with it, but on the pragmatic assumption that there is a need to adapt and evolve according to the requirements of the time, as Edmund Burke would have said of his time. There are principles we believe in, such as human rights, freedom, democracy and liberty, but we apply them periodically according to the circumstances of the time, not according to a fixed order of the kind prescribed in the arrangements we are debating.
Indeed. The red lines have already leaked like a sieve. I am reminded of the story of the hunting of the Snark; in the pursuit of an abstract and completely unknowable objective the colander leaked like a sieve and sank. That is exactly what will happen in this case.
I am concerned about the overlap between the European convention on human rights and the charter of fundamental rights as set out in article 6, which is the subject of the amendment. I referred to the article earlier in an intervention on a Minister. For all the weasel words and questions about opt-out—whether we really face legislation that we could avoid by some mechanism, trickery or cunning—and all the legal verbiage that we shall have to deal with in due course, we are discussing amendments about whether the provisions before us should apply. I am open to challenge, but I merely repeat the words in article 6(3):
"Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedom and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law."
That means that the European Court of Justice will apply the general principles of the Union's law. I have heard many arguments suggesting that that will not be the case, and that the European Court of Human Rights will be able to retain its independent status and continue to operate as if the provision had not been passed, but I think that that is pure Walter Mitty.
I am grateful to my hon. Friend for putting together and tabling so many excellent amendments, which, if we had the time to discuss them, would indeed provide us with the line-by-line scrutiny that we are being denied. Does he agree that the Government do not seem to grasp that the simple question is: "Do you wish to be governed by elected people in Parliament, whom you can sack, and from whom you can get a different answer following a general election, or do you wish to be governed by unelected people on the continent whom you cannot sack, and from whom you will never get a different answer?" Is not that the issue?
It is the issue, and the point needs to be repeated over and over. I believe that there are Members on the Labour and Liberal Democrat Benches who believe in that, because their own parties evolved from, or came from, the fight in the 19th century for the very rights that we are now taking away from them. It is astonishing that a vague application of general principles, through the European Court of Justice, should be allowed to be a substitute for people's right to choose who they want to vote for, and to choose the Government under whom they want to live.
We are always being told that we have to listen to what that European Court says. Opinion 2/94 of
"entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order"— end of story. That relates to a European Court of Justice case. There is no argument about that. As many Conservative Members have rightly said in their extremely good contributions, the European Court of Justice has the last say—and the last laugh.
I am grateful to the hon. Gentleman. I cannot tell him how much fun I have listening to him. Has he considered the European Court of Justice's Internationale Handelsgesellschaft ruling of 1970, in which it was decided that fundamental rights formed part of the general principles of Community law that the ECJ was obliged to uphold? That is basically exactly what is written in article 6(3).
The only reason Handelsgesellschaft, together with Costa and a series of other cases that I could quote to the hon. Gentleman, who obviously does not have all his cases in front of him, has any applicability whatever to this House and to the people of the country, including my voters, is because of sections 2 and 3 of the European Communities Act 1972. I address that issue in my new clause 6. The Government have said that they do not want the charter to apply to this country. Although they go in for a lot of weasel words about opt-outs and the rest of it, that is their bottom line, and they said as much during the Convention. The reality is that there is only one way to extract oneself from the labyrinth, or leviathan, of the European Court of Justice, from which there is no appeal, which is not elected, and which lays down principles through the acquis communautaire, with which we have to comply because of sections 2 and 3: to use the formula,
"Notwithstanding . . . the European Communities Act 1972".
I would like to press on to other matters, and then I should like to come back to the issue of how the unity found among Conservative Members could best be achieved by others.
Indeed, but the difference is that there is a way of dealing with the judgments that come out of the House of Lords—enacting legislation and putting matters right. I am delighted that the hon. Gentleman walked into that bear trap. The proposition that I put to the Committee is that we should insist on the supremacy of Parliament to rectify decisions that are taken on behalf of our electors. He is the hon. Member for Wolverhampton, South-West. I doubt very much whether the debate will be reported in any of his local newspapers, which is a great pity, but if his electors knew that the hon. Member for Wolverhampton, South-West, who is the successor of my old friend Nick Budgen, would prefer to have decisions taken on their behalf by the Court of Justice rather than by themselves, he might not be in his present position very long. However, he can rest assured that, as I have said on a previous occasion, the best way to keep a secret is to make a speech in the House of Commons. The hon. Gentleman, my good friend, will therefore understand that he is trespassing on sensitive territory.
The Government were explicit and clear about the Human Rights Act 1998. The Lord Chancellor at the time made it clear in his speeches that the sovereignty of the United Kingdom was not affected by the Human Rights Act and that we could legislate inconsistently with it if we wanted to do so. Lord Hoffmann, in a famous case called Simms v. O'Brien, made it crystal clear in a House of Lords decision that if Parliament decided to do so it could in every material respect amend or repeal that Act. The Lord Chancellor of the time made that clear as well.
That is not the same as the question that applies to the European Court of Justice, which is why I was so keen to get on the record my concern that the European Court of Justice will effectively subsume—as it was expressed in the decision of the Court of Justice—the legal order of the European convention on human rights. It may apply the principles, but that is typical of the doublespeak of a kind that I came across in a very interesting book, which some people will recall: "Nineteen Eighty-Four" by George Orwell.
In the book Orwell deals with the biggest problem of all. He writes:
"In Oldspeak it is called, quite frankly, 'reality control'."
I started my speech by saying that I thought we were moving into virtual reality. We are going back to "Nineteen Eighty-Four" in the field of reality control. Orwell goes on:
"In Newspeak it is called doublethink, though doublethink comprises much else as well.
Doublethink means the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them."
We are dealing with the concept that there are fundamental principles that are part and parcel of the European convention on human rights, but the doublethink comes from saying, "Those are the principles, but that is not the way that they are going to be applied." They will be applied another way, under the aegis of the treaty of Lisbon and the general principles of the Union's law, as set out in article 6(3). All the abstruse debate, none of which will get into the press or be discussed in the media, is about one simple problem—that is, that the people of this country are being profoundly deceived by the idea that this Bill is innocuous and will not have a dramatic effect on their daily lives, but it will.
I listened to the earlier debate, in which the Government claimed that, although these proposals would make no difference at all, they were still bringing them in because they had to do both. Is that ability to hold two ideas at the same time an example of doublethink?
It is not only doublethink, but—if I may, somewhat presumptuously, add a little bit to George Orwell—double cross. That is all part of the problem. There is an assumption that, because nobody is going to listen to any of these debates and because the Benches are so empty, this does not matter. It matters very much indeed, however. The European Scrutiny Committee—on which I have the honour to sit with my hon. Friend Mr. Clappison and others who are in the Chamber tonight—has done this country a service by revealing the truth, which the Government cannot dispute. I shall be fascinated to hear how the Minister for Europe responds to the debate, because he knows that as this process progresses, and as the curve begins to come back to reality, this will catch up with the Government, just as the working time directive did under our own Government.
My hon. Friend is making an extremely convincing case. On his point about the increasing effects of the treaty on our everyday lives, should we not see the operation of the charter and the European Court of Justice in conjunction with the increasing competence of the European Union? For example, the treaty will enable such increases to happen in the fields of judicial and home affairs and in many other areas as well. As the reach of European Union law and European Union action are increased, by the same token will not the reach of the European Court of Justice be extended, as well as its effect on people's everyday lives?
My hon. Friend is completely right; this is an evolving dynamic. New rights are being created by these provisions, although that is denied by the Government. Every time the European Union accumulates functions, it claims that this does not involve the creation of new rights. In 1972, we agreed to go into a thing called the European Community, but the accumulation of functions since then has changed the dynamic. Similarly, if one were to have spoken about the need for democratic reform in 1848, it would not have been the same as talking about democracy in 1888, 1928 or 1948. To go back to my earlier analogy about the atom, we have now started to move into a quark-like environment in which we are actually going backwards. Our democracy is being devoured in this new virtual reality that is being created. People need to think hard about this.
In our earlier debate, Mr. MacShane was talking about the great 19th century reformers. I do not want to make a big issue of it, but it so happens that one member of my family, John Bright, fought tenaciously and successfully for the right of the man in the street to have the vote. Every single person in the country would support that now, but there was huge resistance to it in those days. Those rights were established within the then Liberal party—not this completely vacuous, insipid abstraction called the Liberal Democrat party today—which, in those days, actually fought for people's rights. People now talk about rights but they do not act to achieve them. That is the problem.
I suggest that the hon. Gentleman is demonstrating the doublethink that he earlier decried, and I will explain that. He quite rightly said that democracy evolves over time, and he gave the examples of 1848 and the achievement of universal adult male suffrage. The achievement of the vote for women happened in my mother's lifetime. However, he then said that he wanted to wind democracy back to
I should get ahead a little, because others definitely want to speak.
I should like to touch on how the European Court of Justice has operated, on the interaction in our constitution between the decisions taken in the House and those of the Court itself, and on what we can do about it. There is a world of difference between saying that we want to be able to legislate for ourselves and facing up to the fact that that presents certain constitutional problems in the light of the European Communities Act 1972. However, before I get to that, and because my main concern is about the rights of the people of this country to have the vote and to be able to use it properly, I should like to refer to chapter 5 of the charter. It talks about citizens' rights, and mentions the
"Right to vote and to stand as a candidate at elections to the European Parliament", the
"Right to vote and to stand as a candidate at municipal elections", and so on. There is no reference to the right to vote to uphold the democracy of the individual member states according to their constitutional orders; this is to do with the European Union's citizenship. In an intervention, I made a point about the Lisbon treaty. Whereas at the moment, citizens' rights complement the rights of the citizens in the individual member states, the treaty says that those former rights will be in addition to the latter ones, not complementary to them. That makes a substantial difference. I do not want to labour the point, but a new citizenship is being created. It fills in the gaps about which I remember complaining to my Government during the proceedings on the Maastricht treaty. I vividly remember that that treaty said that, as has been developed by the dynamics of other treaties since, the citizens' rights will be subject to such rights, powers and duties as shall be developed in due course.
Given that the hon. Gentleman is introducing this debate and speaking as if from the Front Bench, and given the references that he keeps making to the Maastricht treaty, can he say whether he—and therefore his party—regrets the Maastricht treaty?
As I voted against it more often than any other Member of Parliament, my answer is yes, I certainly do. It was a fundamental and dreadful mistake. I also happen to believe that we have moved on since then and that the Conservative party is united in opposition to the Lisbon treaty. As far as I am concerned, everything is moving extremely well in the right direction. The hon. Gentleman will find that the problems he has just identified in this treaty—he did that by referring to the Maastricht treaty, which is part of it—will hit his party very hard on the head in due course. However, we will leave that one until later.
In the United Kingdom courts, case law is extremely important in respect of whether we are able to exclude ourselves, as the Government claim they want us to be able to do, from the charter of fundamental rights. There are Labour Members who would like the charter to apply, but we Conservatives do not want it to apply to the United Kingdom. I should like to touch on a number of important cases that need to be taken into account. The first is Macarthys Ltd v. Smith, on which the famous Lord Denning sat. He said:
"Thus far I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. If the time should come when our Parliament deliberately passes an Act—with the intention of repudiating the Treaty or any provision in it—or intentionally of acting inconsistently with it—and says so in express terms—then I should have thought that it would be the duty of our courts to follow the statute of our Parliament."
That could not be clearer. According to that case and that of Garland v. British Rail Engineering, which were both House of Lords cases, and the case of the metric martyrs—Thoburn v. Sunderland city council—the only way we could exclude ourselves from the application of the law of the European Union, which would include this charter on the basis of the analysis of the European Scrutiny Committee and my own and many other legal authorities' assertions and judgments, would be by putting in a provision with the phrase:
"Notwithstanding...the European Communities Act 1972".
I understand the problem that some people have with the fact that those words appear to invade the acquis communautaire, but I also know that we are committed to the idea of maintaining economic competitiveness, and we have statements to the effect that we will exclude ourselves, once again, from the provisions generally described as the social chapter or the social charter. The bottom line is that there are many provisions, including the working time directive, from which we would want to exclude the United Kingdom in our vital national interests.
It is important to bear in mind the fact that there is only one way of achieving this, on all the analyses that have ever been put forward with any serious purpose. In the famous Factortame case, we got stuck, in relation to the Merchant Shipping Act 1988, by not including the words:
"Notwithstanding...the European Communities Act 1972".
As Lord Bridge said in his judgment, the British Government decided in 1972 that they would agree voluntarily to accept the arrangements for the European Union under sections 2 and 3 of the European Communities Act 1972, and therefore, because they had agreed to it voluntarily, unless and until they were either to repeal or amend it, it was for all practical purposes the duty of the senior court in the United Kingdom, the House of Lords, to strike down that Act. So in the pursuance of a European Union policy and a judgment of the European Court of Justice, they struck down an Act of Parliament that had been passed by this House. That is a very serious matter. If we and the Government were properly and truly united on not wanting the charter of fundamental rights to apply to the United Kingdom, we would have to apply the same formula in order to achieve it.
We have reached a very important moment. We have an opportunity to take the steps, without weasel words and by being direct, to sort this matter out as the Bill progresses. We have this stage now and a further stage to come, and the House of Lords in due course. However, there is a problem, which I do not want to exaggerate but just to mention. I hope that the European Scrutiny Committee in the House of Lords—I say this with great respect to some very eminent people—in no way ends up, in the report that is coming out quite soon, disagreeing with what the European Scrutiny Committee has said in the House of Commons. I could go into this at greater length, but my concerns are considerable. There is by convention in this House a doctrine of comity, and it would be a great shame if we were to find that a serious disagreement emerged on the application of the principle that I have just enunciated.
All the material dealt with by other Members in the earlier debate about the way in which the European Scrutiny Committee handled the matter so expertly boils down to this matter, which is why it is essential that we remove the application of the charter by the effective words in my new clause. The conclusion of the European Scrutiny report states:
"It is clear that the Government accepts that the Charter will be legally binding, and it has stated that the Protocol is not an opt-out. Since the Protocol is to operate subject to the UK's obligations under the Treaties, it still seems"— we have been through this before—
"doubtful to us that the Protocol has the effect that the courts of this country will not be bound by interpretations of measures of Union law given by the ECJ and based on the Charter. 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."
The report goes on to say:
"In our view, the only way of ensuring that the Charter does not affect UK law in any way is to make clear, as we have already suggested, that the Protocol takes effect 'notwithstanding the Treaties or Union law generally'."
It then says that that has been done in the context of the acquisition of property in Denmark and in respect of the Irish constitution, but
"it has not been made in respect of the Charter."
The Government, therefore, stand condemned for not doing their job properly. In reality, the only way in which the Government can achieve their objectives of excluding this charter from the law of the United Kingdom is by adopting the wording in my new clause 6. It says, in a nutshell, that notwithstanding the European Communities Act 1972, nothing in the charter shall have effect in UK law, and it effectively also says that that provision should be binding on our judiciary. I say that because I believe absolutely and implicitly in this House. The only way we can deal with the essential question of maintaining its supremacy in relation to the charter, let alone the national obligations that would arise later, would be by doing what I suggest. As a final point, during the course of discussion, we may be able to find a means of wrapping up all my points on the way the treaty operates in relation to the UK. This is a hugely important issue. We are at a watershed—a point of no return. This is the Rubicon for the United Kingdom.
I have not quite made up my mind what I am going to do at this juncture. If I had the privilege of being able to move my new clause, I would do so. I am conscious of the fact that these are hugely important questions, and I look to those on my Front Bench to consider them because I have no faith in new clause 12. We may be able to come to some understanding about that in due course, but at this juncture the most important thing is that we retain the supremacy of this Parliament not only over national parliamentary matters and the Bill of Rights, but over the charter of fundamental rights. We should do something about that definitively during the course of these proceedings.
I follow Mr. Cash with some trepidation. I have sympathy with some of his points. He has made almost a lifetime's study of European institutions and I respect that amount of learning.
I do not agree with the hon. Gentlemen's reflections on the state of the national Parliament and the national Government. Decisions that affect the daily lives of our co-citizens cannot be controlled totally by a national Parliament, given the way in which economic and social powers are subject to global, certainly multinational, forces. With some reluctance but also realism, I accept that there must be a European transnational dimension to our politics. Without that, we cannot attempt to control the forces that are now at play, or prevent them from being further unleashed. Those forces can contribute to the general welfare of mankind if properly controlled, and for those reasons, one accepts that there must be transnational co-operation between Parliaments and Governments.
Does not the hon. Gentleman accept that 13 articles of the charter derive at least partly from interpretations of ECJ case law, which it establishes and can control in future? Does he believe that we should hand over to European institutions such as the ECJ that amount of control over law making in this country? Does he believe that his constituents want that?
If the hon. Gentleman has listened to any of the points I have made on previous days, he knows perfectly well that that is not my position. I shall deal with the ECJ shortly.
I have found the experience of our discussions on Europe frustrating because many of my hon. Friends and perhaps others want a proper debate about the way in which the labour market will be regulated and our response to the economic forces that are now at play and appear to escape democracy's power to control them. There is a sane Labour voice to be expressed and heard on that matter, but it has failed to be properly expressed and the Government have failed to respond to it.
As I said during our discussions on the programme motion, the Government tabled a series of debates on generic issues, which favour their slightly rose-tinted view of the treaty. I asked for—and I believed that I had been given an assurance—a proper debate. With no disrespect to you, Sir Alan, we have not yet secured it. I believe that that is down to the business managers. We therefore have to attempt obliquely to raise the issues that we want to discuss. We did so earlier today in the debate on human rights and now we are doing so through the amendments.
I want to consider amendment No. 203 briefly before reverting to the knotty problem of the ECJ. I shall tackle the latter by referring to the charter. It will be no surprise to anyone who has listened to my comments and those of my hon. Friends that I want to concentrate on chapter IV of the charter of fundamental rights. The Government are in an unusual, even extraordinary position of saying, on the one hand, that there is no opt-out—my hon. Friend the Minister for Europe said that in the previous debate when we exchanged ideas—and, on the other, claiming that, according to their interpretation, the charter will not extend to UK law. On the other hand, there is the anomalous position of title IV, which is entitled "Solidarity", but which for some reason a clause in the protocol says,
"for the avoidance of doubt", will create no new justiciable rights in the United Kingdom beyond those Acts of Parliament that are already agreed or which will be agreed in future.
The phrase "for the avoidance of doubt" strikes me as anomalous, given that the Government's position is that there is no doubt about the rest of the charter. The charter is not meant to create any further justiciable rights in the United Kingdom beyond those enacted by Parliament. We have heard the Government say that on a number of occasions. If there was no doubt about that, why was it necessary to include the phrase "for the avoidance of doubt"? There must be some doubt about the rest. Having listened to comments by hon. Members from all parts of the House, I have some doubts about whether the rest of the charter could create additional justiciable rights.
However, I want to focus on title IV and the signal that it sends the European Court of Justice. We are in an anomalous position, whereby the rights contained in title IV have been distinguished, by the phrase to which I have referred, from all the other rights in the charter of fundamental rights. We have to ask why that clause was added to title IV. If that was not done simply to appease the business lobby, which was extremely vigorous and close to the former Prime Minister, one has to ask how title IV is substantially distinct from the other titles in the charter.
I suggest that the inclusion of that provision creates an asymmetry, because when the charter and its implications come to be analysed and judged upon by the European Court, it will frequently have to strike a balance among the various rights contained within the charter. In striking those balances, legal minds will obviously be brought into play, but it is hard to escape the conclusion that some extremely fine judgments will be made that will stray from the purely legal and into the political. Indeed, the ECJ has already strayed into that area in making political judgments—it is not for me to ask about the political control through which the legislative processes of the EU can exercise some influence upon the ECJ, save to say it seems to be extremely limited.
In striking a balance among the various rights contained in the charter as a whole, the Court might be minded to reflect on the fact that the United Kingdom and Polish Governments have chosen to point a finger at title IV, which contains a series of fundamental rights that I would have thought few in the House would deny, including the right of workers to collective representation and, if necessary, the right to take strike action. There are many others, too, which are there for everybody to see. When the ECJ makes judgments in industrial or other disputes, it will be somewhere in the minds of the justices that the UK and Polish Governments have pointed a finger directly at the rights under title IV and said that they are not the same as any of the others, since those Governments have taken the step of indicating that the rights under that title will not create any additional justiciable rights in their countries.
Why was that done? As has been said, when the then Prime Minister came to the House and mentioned all the other achievements that he had gained, many of which were very welcome, he totally omitted to mention title IV.
In subsequent debates in the House, including today's debate, the Government have failed to articulate any reason for title IV and all the rights contained in it to be treated differently from all the other rights in the charter. I asked the Secretary of State why that should be. He is currently collecting his papers: he is probably about to leave the Chamber very quickly, but that does not matter, because his reply is in Hansard for all to see. He said that the Under-Secretary of State for Justice, our hon. Friend Bridget Prentice, would give the explanation. I sat on the edge of my seat, as did my hon. Friends and, probably, Members in all parts of the Chamber. I listened very carefully to what was said by the Under-Secretary, but no explanation was forthcoming.
My hon. Friend the Minister for Europe, who is now in his place, told me that he would give an account of why the exemption was made, but when I asked him to summarise what he would say, he developed a very sound critique of amendment No. 203, tabled by me and signed by a number of my right hon. and hon. Friends. I must tell him that that is not what we are looking for. We are simple souls, and we want an explanation of why the Government decided to treat title IV and the articles therein differently from all the others. The ECJ has already created a legal precedent: it has already decided to prioritise some rights over others. My hon. Friends and I referred to them earlier.
The right of any EU company to establish itself anywhere in the EU is clearly one of the fundamental rights. It is in title II, as is the right of any company in the EU to provide services anywhere else in the EU. The ECJ has already determined that those two rights have priority over the rights of workers to collective representation. That was before the Government did what they did, but I can only imagine that what they have done will accelerate, exaggerate and possibly exacerbate any future decisions when the Court makes finely balanced and, I would argue, ultimately political judgments about the various rights in the treaty. That will often be at the expense of the ordinary people whom we seek to represent—increasingly so, because companies increasingly operate in a multinational framework.
I have looked carefully at the amendment which stands in my name and that of many of my colleagues—and which, incidentally, is supported by every trade union affiliated to our distinguished party—and I have no doubt that the issues I have raised resonate far beyond this place. Certainly they will affect the Minister's constituency and his constituents as much as mine. Having looked carefully at the amendment, however, I do not think it achieves exactly what I wanted to achieve. I have discussed the matter with colleagues, and when the time is appropriate I shall not press the amendment to a vote. However, I hope that the Minister will be able finally to unlock the secret closet containing the notes that explain the curious and anomalous situation in which we now find ourselves.
Tonight's debate, like many of these debates, is about where power should rest. It is about democracy itself, especially in the context of the excellent amendment tabled by my hon. Friend Mr. Cash. I should like the amendment to go a little further, because I should like to see the sovereignty of a Parliament clearly reaffirmed and re-established in the laws that we enact when trying to tackle this rather difficult and refractory treaty.
This Parliament made itself great over many centuries because campaigners of all parties and of none—Whig and Tory, Labour and Liberal and Conservative—came together so often to assert the right of elected representatives in this House of Commons to make the laws and take the right decisions, and to face their electors in turn on the hustings so that their work could be adjudged good or bad and the necessary decisions could be made about the futures of MPs individually and of Governments who had exercised the powers of this House.
There have been two great movements. There has been a great movement over many decades to ensure that we reach the point where all adults have the precious advantage of the vote, so that they can choose those elected representatives and decide whether to remove them when they fail to do their jobs in the imagined way. The other great movement was to ensure that the powers were in this Chamber and in Parliament as a whole, so that here the laws could be chosen, here they could be amended, and here they could be struck down. What the Government are asking us to do tonight is suspend that right, in perpetuity perhaps, and certainly for a very long time—there is no fixed time for this treaty—so that in future such decisions may in many areas be made by unelected people in a European court. They may, as far as the British people are concerned, in future be made by unelected people sitting in Council chambers, often meeting in private and reaching decisions in private.
I am following the right hon. Gentleman's points with great care, but I am puzzled that he seems to ignore the fact that, ever since this country joined what was then the Common Market all those years ago, there has been primacy of European Union law as decided by the collective institutions of the EU and as interpreted by the European Court. The point he is making is simply an argument for the United Kingdom to withdraw from the EU. That is a perfectly respectable point of view, although I profoundly disagree with it. Is that what he is asking this House to decide, and is that the official policy of the Opposition?
The right hon. Lady is a little cleverer than that: she knows that that is not the official position of the Opposition party, and nor is it the case that I happen to be making at present. Her history is wrong, of course: we did not give all those powers away at the beginning when we joined something called the Common Market in common parlance, or the European Economic Community as set out in the original treaty. That was not the deal offered to the British people when they last had a vote on this issue in 1975. It so happens that I voted "no". I have always since accepted the verdict of the British people. I am sure that they voted for a common market, and that is what I would like them to have. They voted for co-operation and collaboration while our country retained its veto. What I dislike about the deal under discussion—the clauses before us tonight highlight this—is that our veto has been given away needlessly, when the Government had the veto to veto surrendering the veto; the Government just had to say "no", and they would not have had so many law-making powers brought in by the back door by this treaty and this proposed legislation.
I, like my party, say that this deal is many steps too far—it gives away far too much of the power rightly accumulated by Parliament over the centuries to do good for the British people and to respond to their will and their wishes. The right hon. Lady has in a previous intervention in our debates today come up with a clever argument. She says that the magic of this particular block of work is that at last the EU will have to submit itself to the human rights Court and the human rights convention that many states in Europe have signed. What she omits, however, to tell the House in that very partial interpretation is that that in no way detracts from the power of the European Court of Justice to keep on advancing its power at the expense of the British people and their elected representatives in this Parliament assembled.
The logic of the argument we have heard from the Labour Benches is as follows: as we have given some power away already, we might as well give the rest of the power away. Does my right hon. Friend agree that that is the Government's position?
That is clearly the Government's position. They have shown total surrender in the negotiations over the treaty as a whole. The Government have told us again tonight that they wish the large number of principles and rights set out in the document before us to be adopted as part of our law code. Worse still, they will accept not one but two European Courts standing in judgment over us. Like my hon. Friend Mr. Cash, I am more worried about the European Court of Justice, because it has a long tradition of furthering a federal agenda. In case after case that Court is determining that there should be more power for law-making and decision in the European Union and less in the member states.
Is that not why this House and the British people should approach this treaty with the greatest scepticism? They will recall the European Communities (Amendment) Act 1986, which I voted against. Our right hon. and noble Friend Baroness Thatcher was assured that employment and the social contract would be outside the ECJ's remit, but the ECJ took that area into its own power. Therefore, we should resist any Government attempt to hoodwink the British people into thinking that we should accept these assurances.
That is exactly right. The facts are stark. This Government have surrendered 10 times more vetoes than previous Governments. Some of us had reservations about surrendering some of those other vetoes, but they were at least surrendered in furtherance of the Common Market, for which people had voted in a referendum. That was why Baroness Thatcher decided to make those modest surrenders of power in the 1980s. Since then, this Government have given away massive rights, duties and powers that have nothing to do with the Common Market for which the British people voted.
I suggest that the hon. Gentleman tries reading the different treaties. The Single European Act was, as its name describes, about market measures to try to promote a common market. I believe that a common market is created by having buyers and sellers and does not need nearly as much law as the European Union subsequently developed. The SEA was a very narrow area of work compared with a common foreign policy, a common army, a common defence policy, a common criminal justice policy, a common immigration policy, a president of Europe and a much-expanded Parliament, all of which have come under this Government's watch.
At each point, the Government have claimed that they were not giving any real power away, that we would not notice the difference, that they had protected our interest and that the famous red lines were in place. We have heard all that nonsense, but we can see from the huge amount of work embedded in this revised treaty that massive powers were surrendered at Nice and Amsterdam, and that such a surrender is being proposed tonight in this crucial area of fundamental human rights.
We have been told by some Opposition and Labour Members that we do not value human rights or the very good principles embodied in parts of this text—but of course we value those things. We fight, and our predecessors fought, for those rights for the British people just as surely as the Labour party has often done in the past. We believe that those rights are best expressed in British law, in the English language and in a way that is answerable to the British people. We believe they have to stay like that, so that the British people can, through their elected representatives, change, amend and improve them as circumstances and time require.
This treaty is an inflexible, unaccountable and thoroughly undemocratic way of legislating. We are being asked to embody at one point in the long evolution of our national and European history, a set of principles that might make sense to some people now, but which are going to be extremely difficult to change. It will be impossible to change them in a democratic way in this Parliament, because the agreement of so many of other member states will be needed, as will a treaty amendment. As we can see, such an amendment is a complicated and difficult process.
We must amend these clauses and retain these powers that the Government wish to give away. We must restore the position that this Parliament makes these crucial decisions, so that we answer to our electors. We should live or die as politicians by how well we do and by whether we answer to our electors in the correct way.
It is a pleasure to follow my right hon. Friend Mr. Redwood and I also congratulate my hon. Friend Mr. Cash on introducing the debate and speaking so knowledgeably on the topic. As I have five minutes to speak, I hope that they will forgive me for concentrating on amendments Nos. 217, 228 and 229.
Amendment No. 217 would strike the charter of fundamental rights out of the treaty. I remind Labour Members that that would be in accordance with the Government's policy until a few years ago. Tony Blair told the House after the Nice treaty was agreed:
"Our case is that it should not have legal status, and we do not intend it to. We will have to fight that case."—[ Hansard, 11 December 2000; Vol. 359, c. 354.]
The Government have now given up on that fight, and that was a mistake. As the European Scrutiny Committee has explained in its reports, the Government's vaunted protocol would not stop the charter coming in through the back door as the European Court of Justice applies it to cases that come before it from other EU member states, with judgments that then become binding precedents for the whole EU, the United Kingdom included.
"people will be able to bring it"— the charter—
"up in the European Court of Justice just as if it was the Beano if they like. Nobody will be able to litigate with it".
He failed to foresee that the Government's policy would evolve into the complete opposite of that position.
Indeed, history teaches us that the more vehemently Ministers state their position, the likelier it is that the Government are about to undertake a U-turn. For example, Mr. Hain, as the Government's lead negotiator on the EU constitution, asserted that
"there are real legal and practical problems linked to incorporation"— of the charter into the constitution—
"which might lead to the European Court overturning UK law. There is absolutely no possibility of us agreeing to this".
When he said that, it should have been a sign that in time the Government were set to do exactly that.
Paragraph 1 of new article 6 of the treaty would give the charter full legal force as it would have
"the same legal value as the Treaties".
The rights listed in the charter cover everything from asylum to data protection to the right not to be tried twice for the same offence. Much of it, as a general statement of the kind of rights people ought to enjoy, is motherhood and apple pie. However, there is a world of legal difference between a general statement of political goals and a legally binding text. As I have said, the European Court of Justice would apply the charter to cases that come before it, and that would allow it a far wider degree of discretion in its judgments, in effect leading to yet more judge-made law. That is why the Government rightly spent so long opposing giving the charter legal force, and that is why those who are federally inclined see the charter as so important.
Talking of the federally inclined, I turn to the subject of the Liberal Democrats. The Liberal Democrat MEP Andrew Duff, with whose views I strongly disagree but whose expertise on these matters I respect, has said that the charter
"is part of the process of federalising the EU. The consequence of the Charter installing a fundamental rights regime within the treaties is part of the federalising process, and I think everyone apart from the Brits seems to be quite clear about that."
As Mr. Duff is the Liberal Democrat spokesman on constitutional affairs in the European Parliament, we must presume that that comment represents the official position of the Liberal Democrats. I am pleased, therefore, to put that on the record tonight.
The Government pray in aid their protocol, but as I said earlier, the European Scrutiny Committee has said that it is doubtful that the protocol will in the end stop EU judges enforcing the charter on cases that come to it from Britain. Amendment No. 228 is intended to remedy that failure by limiting the charter's application, in other words to stop it coming in through the back door. If the opportunity arises, I wish to divide the House on that amendment.
For years, the Government opposed the suggestion that the charter should have any legal force. Then they admitted that it would have legal force, but Tony Blair assured us that we would have an opt-out. Then, under pressure, the Government admitted that they did not have an opt-out, only a clarification. Now, incredibly, Ministers are claiming that they never actually asked for an opt-out at all. The Government are, frankly, all over the place on this issue, yet the liberties of the British people are at stake. They should be honest with the people and with the House, and should not seek to press this matter. If they do, we will gladly vote against them.
I am delighted to have the opportunity to respond to this evening's debate, albeit relatively briefly. I think that we have had a fascinating debate earlier this afternoon and on the amendments before us now.
We have had the chance to hear from my hon. Friend Jon Trickett, and I will seek to find the key to unlock the hidden door a little later in my comments. We also heard from my hon. Friend Rob Marris and my right hon. Friend Ms Hewitt, who have been assiduous in their attendance and intervention in our proceedings on each and every day on which we have considered the Bill.
We also heard from, among others, Mr. Francois, with whom I am enjoying our daily—or nightly—debates. He made a good case in arguing for his amendments in his own terms, but what was missing from his comments was any discussion of what a Conservative Government would do. Once again, he has remained silent on the social chapter. He had the opportunity to put his views on the record, but he chose not to do so. His silence on withdrawal from the social chapter speaks volumes. Of course, he could intervene now to put the record straight. The hon. Gentleman also refused to say whether, in the event of a Conservative victory, a Conservative Government would seek to renegotiate the treaty and remove the charter from it—
Simply refusing to respond to such points is not an approach that will get us through the rest of Committee proceedings.
We also heard a wide-ranging and passionate speech by Mr. Cash, who spoke from his great experience on Europe gained over many decades. He also referred to the experience of 1848, and spoke passionately about the Soviet era. Let me gently say to him that he has always reminded me of a Conservative version of Leon Trotsky, a man of whom it was often said that he was so far-sighted in his predictions that none of them had yet come true. On Europe, that is indeed the case— [Interruption.] I happily give way.
I would not wish to test your patience too much, Sir Alan, but it is absolutely certain that the hon. Gentleman will not be and would not be allowed to be airbrushed out of history in the way that others have in the past.
On amendment No. 84, the Government are clearly committed to the protection of human rights both in the EU and by the EU, but what is proposed would undermine that commitment. Removing the charter of fundamental rights from the scope of the Bill would not undermine the rights and principles as they already exist as a result of the European Court of Human Rights, the EU treaties, European Court of Justice case law or the traditions common to all member states. The principle that fundamental rights form part of Community law and apply to states when implementing that law is long established and reflects ECJ case law dating from 1970.
References to fundamental rights in the treaties are not new. The first reference to fundamental rights appeared in the preamble to the Single European Act, which the former Chancellor, Mr. Clarke, previously described as the single greatest transfer of sovereignty in this nation's history. That Single European Act provided that member states would
The Maastricht treaty included the first explicit reference to fundamental rights in the text of the treaties. That reference became article 6(2) of the treaty on European Union.
Removing the charter from the scope of the Bill would prevent UK citizens from using the charter as an accessible record of the rights that they enjoy as EU citizens, and which the citizens of all other member states would enjoy. The rights and principles in the charter are not new; it records rights, rather than creates them.
Not at the moment; I shall make some progress.
If the charter were removed from the scope of the Bill, someone in Ireland, France or any other member state would look to the charter as an accessible statement of their rights, while a UK citizen would have to trawl through a plethora of treaties, judgments, cases and agreements. Surely that would be an absurd position for us to place our citizens in.
Is not the Minister advocating a recipe for frustration? When the UK citizen has gone through the rights, he will find that under the Government's protocol he is unable to rely on them.
We have made it clear that the charter does not create new rights, but simply records existing rights. It is an amalgamation of existing rights from different sources.
That is a matter for the usual channels. I will look forward to tomorrow's debate to see how that is resolved.
Let me turn briefly to amendment No. 203. I agree with my hon. Friend the Member for Hemsworth that over the past seven years the conversation about Europe has been trapped in a vocabulary about red lines and protocol. We have often missed the human and social dimension of what it means to be British and European.
Across the European Union, 92 million citizens are economically inactive. That is the big economic and social challenge facing Europe today. As we pay such close attention to the treaty of Lisbon, we must also pay increasing attention to the agenda of Lisbon: providing jobs, restarting social mobility across the EU and moving increasing numbers of those 92 million people into work. Once we have resolved the treaties, red lines, protocols and all those issues, we must have a detailed, thorough discussion about the dynamic of what it means to be involved in a social Europe.
If we had sought on purpose to design a system over the past seven years that would disconnect the citizens of Europe from European structures, we could not have done a better job than we have. We did not choose to go through that process, but we have gone through it. The disconnection has undermined contemporary consent for what Europe can seek to achieve and the great deal of good that it can do on the international stage.
I accept the point made by my hon. Friend the Member for Hemsworth about the concerns of the trade union movement, which are regularly put to me and others. We have agreed with the TUC and others to continue the dialogue about the specific UK social dimension of Europe. That dialogue is only just beginning. We look forward to being involved in that with my hon. Friend and with other hon. Friends.
Arguments and debates about the treaty, the charter of fundamental rights and the direction of Europe are swirling around between parties and countries, but is not the real problem on Europe, and the real tragedy, that we have the only mainstream centre-right party in Europe that refuses to connect or debate and talks only the language of withdrawal?
The hon. Gentleman will be allowed three or four minutes at the end to make his points. I hope that he accepts that that is a fair division of the limited time that we have left, and I shall make sure that I allow him that time.
Amendment No. 125 would remove the provision that the EU should aim to combat discrimination when it acts. Article 2 does not give the EU any new powers to legislate, but it complements the current specific powers of the Council, introduced at Amsterdam, to legislate to combat
"discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."
If we were to accept the amendment, all that would be left of anti-discrimination measures would be article 8, which promotes equality between men and women only. That is important, but amendment No. 125 would remove all the efforts to combat discrimination that I set out a moment ago. That is a ridiculous and reactionary attitude to Europe, and the Government want nothing to do with it.
Amendment 129 would remove a simple restatement of the specific citizenship rights accorded to nationals of EU member states that have been part of the treaty since Maastricht. Opposition Members are resiling from that treaty in ever increasing numbers, but the treaty under consideration tonight would not affect the specific articles on the rights of citizens. I therefore encourage the hon. Member for Stone to ask leave to withdraw the amendment.
I wish to allow the hon. Member for Stone time to sum up his arguments. He claimed that things were moving in the right direction for Conservative party policy on Europe, but as my right hon. Friend Mr. MacShane noted, the Opposition are more obsessed about, and more isolated in, Europe than at any time in their history. If we were to accept the Opposition amendments, the direction in which we were moving would be towards the EU's exit door.
In the concluding moments of the debate, I should like to say that the Conservative party is completely united on these matters— [ Interruption. ] I listened to the speeches from the Government Back Benches—they were extremely well delivered—and I was struck by how divided Labour Members are in comparison with us. We insist on democracy and on the right of this country's voters rather than the right of the ECJ to make decisions. That remains paramount, and we shall pursue our proposals. Although I shall not press amendment No. 84 to a vote, I shall seek to vote on amendment No. 228.
Finally, Sir Francis Jacobs, a member of the ECJ, made a seminal speech about the interaction between the European convention and the charter. He said that the rights in the treaty were said to be based on the rights guaranteed on the convention, but that there were intriguing differences of wording. He also said that the treaty's scope was considerably wider than the rights protected in the European convention.
The reality is that there is overlap between the treaty and the convention. They are different, and new rights are being proposed. The Government stand condemned for what they have said today.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: No. 228, page 1, line 12, after 'excluding', insert—
'(i) the Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom—
(a) Preamble, tenth paragraph stating that references in the Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter; and(b) Preamble, twelfth paragraph stating that the Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally; and (ii) ' .—[Mr. Francois.]
Question put, That the amendment be made:—
On a point of order, Mr. Deputy Speaker. Earlier this evening, on a point of order, Mrs. May intervened in the debate on the European Union treaty to claim that, in December, I had held a meeting in my Department to discuss press inquiries about the meetings between my hon. Friend Mr. Khan and Babar Ahmed in Woodhill prison. That is not correct. I was aware, in December, of press inquiries from a newspaper concerning visits by my hon. Friend the Member for Tooting to Babar Ahmed, but at no stage before last Saturday was I aware of any information that the press inquiries concerned any covert recording or anything like that. I confirm what I told the House. There are of course a wide range of other questions about this matter. That is the purpose of the inquiry that I announced to this House yesterday, when I also said that a statement would be made to the House once the report of the inquiry had been received and considered.
Order. There cannot be further points of order. The right hon. Gentleman asked leave to raise a point of order in response to one raised earlier by Mrs. May. If this matter were to go any further, it would become a statement upon which there could be wider questions. I do not believe that it is for the convenience of the House that that be done now. These matters can be pursued on another occasion.
Order. I have said that there should be no further points of order. May I ask all hon. Members who are not staying for the debate on local government in Wiltshire to leave the Chamber as quickly and quietly as possible? There should be no disturbing conversations.