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European Union (Amendment) Bill

I am delighted to follow the noble and learned Lord, Lord Slynn of Hadley. He has been a personal friend of mine for over 50 years and I greatly respect his judicial work. What he said today, he said with immense authority. I believe that he has far more authority to speak on this subject than any other Member of your Lordships’ House. He has done that today to great effect. As I said at Second Reading on 1 April—a not entirely auspicious day—I believe that giving the charter legal status will serve a useful purpose. First, it fills in a black hole in the operation of human rights law in the European Union. Unlike the member states, the European Union is not bound by the European Convention on Human Rights, because that convention does not apply to acts of the European Union or its institutions. It applies only to acts that come within the member states, and the EU is obviously not a member state. While the ECJ can take into account the general principles of human rights recognised by the member states, there has until now been no clear definition of what those rights are. The charter of fundamental rights will provide not an ideal definition but certainly a considerably better one than we have now. The effect of the charter is both limited and modest. As stated in its preamble, the charter reaffirms rights and does not create them. Article 51.1 of the charter states: "““The provisions of this Charter are addressed to … the Union … and to the Member States only when they are implementing Union law””;" while, as stated in Article 51.2, the charter "““does not establish any new power or task for … the Union””." The charter does not apply to domestic law, as the European Union Committee of your Lordships’ House makes clear in chapter 5, paragraph 60 of its extremely valuable and useful report. The charter is far narrower in scope than the ECHR or the Human Rights Act, which apply to all acts in exercise of public authority except for Parliament itself. It restricts the powers of the European Union and of its institutions. It enlarges the powers to challenge EU legislation or activities. I agree with the report of the Constitution Committee of your Lordships’ House that, "““the change in status … from political document to having the force of a treaty would be less of a radical step than at first it may appear””." Is the need for the charter of fundamental rights eliminated by the accession of the European Union to the ECHR? It is true that the charter and the ECHR have many similarities, and there is some risk that without a mechanism to solve this problem, the ECJ and the European Court of Human Rights may come to different interpretations of similar texts. For that and other reasons I would certainly welcome the accession of the EU to the ECHR, which would give the ultimate decision to the European Court of Human Rights if there was any divergence. As the report of the European Union Committee of your Lordships’ House says in chapter 5, paragraph 118: "““This would assist to avoid any risk of conflict between European Union law and the European Convention on Human Rights as interpreted in Strasbourg, by placing fundamental rights on a single consistent foundation throughout the EU””." Article 1.8 of the Lisbon treaty requires the EU to accede to the European Convention on Human Rights. Unfortunately, that is not quite as simple as it sounds. Such accession requires a new protocol, currently the draft protocol 14, to be ratified by all member states of the Council of Europe. The draft protocol has in fact already been ratified by all member states except for one. Unfortunately that member state is Russia, and Russia’s present attitude to the West makes it uncertain whether the protocol will be ratified in the near future. Perhaps the Conservatives, whose delegates to the Council of Europe sit in the same group as the Russians, might put some pressure on their colleagues to achieve that. The fact that there could well be a significant delay in the accession of the EU to the European Convention on Human Rights certainly strengthens the case for the charter, which reaches parts that the ECHR cannot reach. I do not see the charter as a threat to the United Kingdom or to our legal system. No doubt the charter could have been better—it is somewhat clumsy and sometimes long winded—but it is plainly a step in the right direction. The protocol on the application of the charter to the United Kingdom and Poland serves as a defence against largely imaginary threats. As the EU Committee pointed out in Chapter 5.87, the protocol is not an opt-out. I think that that is now generally accepted. It is a pleasantly short document among many long documents and states in its preamble that the charter does not create new rights or new principles. In Article 1, it states that the charter does not extend the present powers of the ECJ to rule that UK laws are inconsistent with the rights or principles of the charter. It also states, in Article 1.2, that the rights mentioned in Chapter 4 of the charter on social and economic rights are justiciable in the United Kingdom only so far as the United Kingdom has provided for justiciable rights in its own laws. It is almost certain that the social and economic rights in Chapter 4 of the charter are not justiciable in any event. However, if we are wrong on that, this protocol will prevent it. I disagree with what the noble Lord, Lord Waddington, said on that. The effect of Article 1.2 is to remove the binding effect in the United Kingdom of ECJ decisions on social and economic rights in relation to other countries. It is possible that the law on social and economic rights may therefore vary between the United Kingdom and/or Poland and other EU countries. What will not happen is that decisions in relation to, let us say, France would also apply to the United Kingdom if that would be contrary to the clearly expressed intention of Article 1.2. Article 2 states that, in application to the United Kingdom, references to national laws apply only to the extent that rightful principles in the charter are recognised in the law and practices of the UK. All the protocol does is emphasise and clarify the interpretation of the charter, which is already implicit in it. That was the broad view of the EU Committee, as set out in Chapter 5.103 of its report. There is no need or justification for any of the amendments in this group.