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Lisbon Treaty (No. 3)

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 the Member for Kensington and Chelsea (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.