EU: Charter of Fundamental Rights

– in the House of Lords at 2:51 pm on 14 December 2005.

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Photo of Lord Willoughby de Broke Lord Willoughby de Broke Conservative Independent 2:51, 14 December 2005

asked Her Majesty's Government:

What is their response to the European Union Commission requirement contained in document COM (2005) 172 that the provisions of the Charter of Fundamental Rights must be enshrined in all new European Union legislation.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, the Commission communication seeks to improve the way in which the Commission ensures its own compliance with fundamental rights. The communication does not change the legal status of the charter, which remains a non-legally binding document setting out existing rights. The charter reaffirms rights already agreed by the member states in previous international human rights treaties, which include the European Convention for the Protection of Human Rights and Fundamental Freedoms. The communication lays down a sensible and transparent procedure.

Photo of Lord Willoughby de Broke Lord Willoughby de Broke Conservative Independent

My Lords, I thank the noble and learned Lord the Lord Chancellor for that reply. Surely, the document deals specifically with the Charter of Fundamental Rights, which was part of a constitution that was knocked on the head by two member states in referenda. Do the Government believe that the constitution is dead and that, therefore, the charter is dead with it? If so, could the Minister please encourage the Commission to stop messing around by breathing life into a corpse, but to do something useful such as getting its accounts approved by the auditors for the first time in 12 years?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, some of the noble Lord's question was a bit wide of the mark. As I said in my Answer, the charter lays down existing rights; it is not a legally binding document. For example, it includes rights such as everyone's right to life, which we would accept from other documents. It is perfectly sensible for the Commission to produce a document that says, "When we are thinking of legislating, we will make sure that we have complied with these fundamental rights". That is perfectly sensible and it is right that it says how it is done in every case.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson in the Lords, Scotland, Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Cabinet Office

My Lords, does the noble and learned Lord agree that the Charter of Fundamental Rights is independent of the constitutional treaty and that it continues notwithstanding the two adverse referenda in two member countries, and, furthermore, that this Government and members of other parties have strongly supported the practice of the Commission in getting impact assessments of what legislative proposals it has been advancing, and that impact on fundamental rights must inevitably be one of the considerations that it has in mind?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I agree with the noble Lord that the charter was completely separate from the constitution. The constitution referred to the charter, but the charter was a document agreed quite separately from the constitution. I also agree that it is right and proper for the Commission, when considering proposals it makes for legislation, to measure up that proposed legislation with what the charter says. The charter contains rights, such as the right to life, the right to liberty and the right not to be tortured, that we would all agree with.

Photo of Lord Howell of Guildford Lord Howell of Guildford Spokespersons In the Lords, Foreign Affairs, Deputy Leader, House of Lords, Shadow Minister (Foreign and Commonwealth Affairs), Shadow Deputy Leader of the House of Lords

My Lords, is not this charter the one that a Minister of the Crown in this Government described as about as important as Beano? If that is the view of the Government—I believe that the Prime Minister was vehemently against the charter's inclusion, in any form, in the constitution—can we be assured by the noble and learned Lord the Lord Chancellor that any future draft treaty that this Government put forward for new rules for Europe, to replace the defunct constitutional treaty, will exclude the charter completely?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I am certainly not going to tie the Government's hands in any future negotiations. I have made clear that the document is non-legally binding. However, I regard the rights contained in it as extremely important.

Photo of Lord Blackwell Lord Blackwell Conservative

My Lords, does the noble and learned Lord agree that the reason the Government originally opposed the charter was that it includes a wide range of social rights as well as civil rights? Against that background, does he agree with the comment in the report of the House of Lords European Union Committee on human rights proofing EU legislation, that:

"The Community courts will, in practice, have regard to the Charter when determining those fundamental rights that form an integral part of the general principles of law. The Charter is thus being used as an authoritative source in identifying and defining fundamental rights at the EU level"?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, the Government opposed it being made a legally binding document because in their view, those rights that should have legally binding effect already do so in this country, while it would be inappropriate to incorporate into our law those that do not. The noble Lord is correct to say that from time to time the European Court of Justice does refer to the charter.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Conservative Independent

My Lords, does not the noble and learned Lord agree that the Charter of Fundamental Rights is being taken forward by the Fundamental Rights Agency in Vienna? I have here two Written Answers from his colleagues which give as the legal basis for those initiatives Article 308 of the treaty establishing the European Communities. Is he aware that Article 308 justifies action only,

"in the course of the operation of the common market".

How does the noble and learned Lord think that that is an adequate basis for this whole initiative?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, the Fundamental Rights Agency does not yet exist. There is already a body in Vienna which looks at what the European institutions do. Further agreement has yet to be reached on the Fundamental Rights Agency.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, this seems to be the day of the Independents in your Lordships' House. Is the noble and learned Lord quite certain that the charter has no legal force? Further, can he assure us that it is not in any way justiciable before the European Court of Justice? We have seen the European Court move things on of its own volition, with dire effects—the latest being in regard to Marks & Spencer on the Chancellor's problems with the deficit. Can he give us an absolute assurance that the ECJ cannot judge matters in this charter?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Secretary of State, Department for Constitutional Affairs, Secretary of State for Constitutional Affairs and Lord Chancellor

My Lords, I would say that it is the day in the House of Lords of the extremely committed. As I made clear in my response to the extremely committed noble Lord over there, from time to time the European Court does refer to the charter, but I make it clear that it is not legally binding in this country.