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Lisbon Treaty (No. 3)

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. Member for Kingston and Surbiton 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 4—the so-called solidarity title—deals with employment and industrial relations, but it begs 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.