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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.