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European Union (Amendment) Bill

I support my noble friend on the Front Bench and support Amendments Nos. 7 and 87. I do so with some trepidation, not being a lawyer myself. However, I think that the issues raised by the charter are ones on which all Members of the Committee should be allowed to comment. Like other noble Lords, I have followed the progress of the Charter of Fundamental Rights. I was on the Select Committee when the Minister, Mr Vaz, appeared before us and described it as no more significant than the Beano. We then moved on to a different stage, where Ministers became rather alarmed about the charter and remarks about the Beano were dropped. If they were alarmed, they should not be surprised that some of us, to this day, retain some caution and some scepticism about what is proposed, because the Government have constantly shifted their position. The previous Prime Minister, Mr Blair, at one point declared that we had an opt-out from the Social Chapter. Then the Minister of State, Mr Murphy, told the House of Commons that we did not have an opt-out. Then the Secretary of State for Justice, Mr Straw, told the House that the Government had never wanted an opt-out. The Government also tried to strike down many provisions of the charter—for example, those relating to children’s rights. Obviously the Government themselves at one point had real concerns. The Government originally argued that they wanted the charter not to be legally binding. On 11 December 2000, the Prime Minister said: "““Our case is that it should not have legal status and we do not intend it to do so””.—[Official Report, Commons, 11/12/00; col. 354.]" Article 6(1) clearly states that the charter has legally binding status and, as my noble friend from the Front Bench emphasised, on exactly the same basis as the treaties. Much has been made of the point that the charter creates no new rights, but even if we accept that—and I shall come to it in a minute—it remains a point of anxiety that the responsibility of the European Court of Justice will be greatly increased. Until now, the court’s role has been to interpret the treaties, directives and specific legislation. If the safeguards are not watertight, the ECJ’s jurisdiction will be extended to other areas. The rights that are to be its concern are expressed in very general terms. That is where there is a clear risk of judge-made law expanding massively. Of concern to non-lawyers is accountability. One of the problems with the way in which the EU works is the one-way street of so much legislation and the difficulty of reversing it, because to do so one has to achieve unanimity. If a judge in this country makes law and the Government disagree with it, they can, if they have a majority and the willingness to do so, legislate to reverse that judgment and be accountable to the electorate for what they do. A different system operates in the EU. It is extremely difficult for judge-made law then to be reversed unless it is unanimously agreed by the 27 members of the Council. For that reason, it is extremely important to ask whether the safeguards that the Government obtained are really watertight. Nobody could criticise the Government for lack of effort or the number of elaborate devices—there are four safeguards in all. There is the protocol, particularly Title IV; there are the horizontal provisions, Title VII; there is the explanation of the origins of the rights that are included in the charter, which is, I regret, not in the Printed Paper Office; and there is Article 6 of the treaty, which explains how it does not expand the competencies of the Union. One’s fear is that it may extend the competence not of the institutions but of the ECJ. Are all these devices effective? That the Government have resorted to no fewer than four—I know that this may seem a rather unfair point—and have gone to such ingenious, elaborate lengths to make the protocol watertight makes one rather doubtful of the assertion that the protocol was insignificant. My noble friend Lord Kingsland said that many academic lawyers had agreed with the opinion that the charter does not create new rights. I am certainly aware of many academic lawyers both in this country and abroad, including former commissioners and professors of law in European countries, who have doubted whether the safeguards in the legislation—the protocol that the Government have obtained—are watertight. My noble friend Lord Kingsland referred to Article 1.1 of the protocol. I do not want to read it out again, but I draw the Committee’s attention to Article 1.2, which states: "““In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland and the United Kingdom has provided for such rights in the its national law””." This is repeated in Article 2, where the last words are, "““to the extent that the rights or principles that it contains are recognised in the law … of the United Kingdom””." So there could be a situation where the ECJ would adjudicate on rights, as long as they were expressed in UK law. The Government have constantly returned to the theme—I am sure that we will hear it again—that the charter does not create new rights. As I said, perhaps that is not the only point. Vaguely and generally defined rights may easily become justiciable in a new way by a new institution. However, is it really true that the charter creates no new rights? The Commission’s website states that the treaty of Lisbon protects, "““existing rights while introducing new ones””." Article 13 of the charter says that, "““scientific research shall be free of constraint””." That looks very much like a new right. The charter’s explanatory notes, which describe the origin of all the charter’s rights, confirm that that right is not recorded in any other treaty to which we are a party. The explanatory notes also buttress the claim that there are no new rights, but some sources from which these rights are said to be derived, such as the European Convention on Human Rights, are not treaties to which the UK has been a party, although obviously not the ECHR. For example, Articles 5 and 50 are derived from the Schengen agreement. Additionally, in some people’s opinions, several articles deriving from the ECHR appear to have had their scopes considerably widened. Many other points could be made about the rights. Some seem more like welfare rights, such as the right to a free placement service, which reads rather curiously in a document of this kind. Others are extremely vague and general; for example, the respect for private life in Article 7 could easily be extended. I am not aware that we have a law of privacy in this country. I know that newspapers and their editors have been extremely concerned that we might get one by the back door, which appears to be made more likely by this provision—