(3rd allotted day)
On a point of order, Mr. Speaker. Today the Minister for Europe is publishing the Command Paper on prospects for the European Union for 2008, particularly about the Slovenian presidency and its ability to get the treaty of Lisbon ratified. It would be helpful if that document were available for this debate. Having checked in the Vote Office moments beforehand, I find that it is not. Perhaps you would look into the matter and see if it could be put right.
On a point of order, Mr. Speaker. It is, I believe, customary for the Government to put down all documents relevant to debate. Frequent reference has been made in the House to the positions that the Government took during the negotiations on the European constitutional treaty. Could you ask the Minister to put before the House those positions and the motions that the Government sought to move in the constitutional treaty Convention so that all of us, rather than just some, can refer to them? I have asked the Library; it does not possess a copy.
As I have said previously on points of order, hon. Members can sometimes call on me to do things that are the business of Government. It is up to the Government to decide what papers to lay down in the course of the debate. I thank the right hon. Gentleman for raising the matter.
I beg to move,
That this House approves the Government’s policy towards the Treaty of Lisbon in respect of provisions concerning human rights.
The United Kingdom has been at the forefront of the development of fundamental human rights, especially since the notion was first articulated by Winston Churchill and President Roosevelt in the Atlantic charter in 1941. Nine years after that charter, British lawyers—including the distinguished lawyer Sir David Maxwell Fyfe, who later became the Conservative Lord Chancellor as Lord Kilmuir—were instrumental in drafting what became the European convention on human rights. The Labour Foreign Office Minister, Kenneth Younger, described the resulting document as
“following almost word for word the actual texts proposed by the United Kingdom representatives”.
The rights contained within the convention have a long British pedigree, rooted in Magna Carta, the 1689 Bill of Rights and habeas corpus. They were a manifestation of the values already deeply imbued in the British social fabric and our common law. However, it is as much the origins as the effect of these rights that are relevant to this afternoon’s debate.
The European convention was a means by which a continent racked by the most horrific violence and violations of the most basic rights could heal its wounds. The crucial development was the way in which human rights moved from just being noble sentiments to becoming legally enforceable mechanisms by which a nation’s citizens could seek protection from the otherwise overweening power of the state.
Does the Secretary of State accept that, over the centuries, it has been this Parliament that has defined, upheld and shaped our human rights, and that it should be this Parliament that does so in future? The European charter would be too inflexible and would not reflect the will of the British people.
I do not accept that. It was this British Parliament that decided in 1971 to join the European Union. It was also this British Parliament that signed up to the Single European Act in 1986, to the Maastricht treaty and to the treaties of Amsterdam and Nice. We now have the prospect of signing up to this one. It is open to any party in this country to propose in its manifesto that the United Kingdom should withdraw from its treaty obligations and leave the European Union. That is the sovereign right of this country and this Parliament, and long may that continue to be the case.
The right hon. Gentleman did not mention the controversy within the Labour Cabinet over these matters in the late 1940s. He did not mention the hesitations and reservations expressed by the Lord Chancellor, Lord Jowitt, about the European convention on human rights, because of a matter that is germane to this debate—namely, the jurisdiction of an independent non-UK court. That was the crux of the difficulty that the then Labour Government were confronted with, as we are today.
I have not mentioned those things here. However, I have only just begun my speech, so that is not surprising. There are quite a number of things that I will have mentioned by the end of it. I want to reassure the hon. Gentleman, however. I was not going to mention that part of the history today, but I mentioned it recently in a lecture that I gave to a Justice and Guardian newspaper seminar—
It is on the website, but I would be happy to put it in the Library and lay it on the Table as well.
I am aware of the history, and of the fact that there was debate in both parties on whether it was acceptable to sign up to a convention and to be bound by the decisions of its courts. I have to say, however, that both the major parties, along with the Liberal Democrats—and their predecessor, the Liberal party—and now this Parliament have successively decided to endorse our signature of the European convention and our acceptance of the decisions of the Court at Strasbourg.
We all know about the European convention, whose history the Secretary of State is describing. What concerns us today, however, is why the Government think it appropriate for this additional charter—the charter of fundamental rights—to come into existence and to become an integral part of European Union law, as opposed to European convention law. Are we not simply duplicating?
May I take the right hon. Gentleman back to something that he said a few moments ago? He stated that the British people had signed up to the European Union. He is a man of great honour; will he at least acknowledge that the British people have only ever voted to join a trading relationship? What we are getting now is a quite different sort of relationship, which is why the Government should honour their promise and give the British people their say.
The debate during the 1975 referendum roamed much wider than that; plenty of histories of it have been written. It is a matter for the hon. Gentleman to win an argument within his own party. Perhaps he wishes to propose that his party commit itself to leaving the European Union—an idea on which the hon. Gentleman is very keen—and putting the question to the British people in a referendum. That would be the appropriate way to address that absolutely fundamental issue.
Meanwhile, I shall make a little progress before provoking some more interventions. Lest the House forget, I was just saying how the ideas moved from being sentiments to legally enforceable mechanisms. The lessons of European history are conspicuous: good will and paper barriers, in and of themselves, are no protection from the perils of authoritarianism. The creation of common minimum standards, backed up by law and enforced by supranational courts—that is the heart of the argument—has turned out to be a powerful guarantee of citizens’ rights and freedoms.
Britain has played a pivotal role in developing that culture of rights and the idea of human rights across Europe. My point to the hon. Member for Aldridge-Brownhills (Mr. Shepherd) is that that has been of profound importance in helping to introduce across Europe shared prosperity and stability, from which our own citizens have so benefited. Without not only that culture, but the ability to enforce common standards of human rights, I doubt very much whether we would have seen the extraordinary progress made during the lifetimes of many right hon. and hon. Members, including mine. We have moved from a position in which only a handful of European states could be described as functioning democracies; there were dictatorships not only in eastern Europe but in what we now describe as western Europe. Today, almost every nation meets that description, or is working hard towards it.
When I was Home Secretary and Foreign Secretary I was very involved in the expansion of the European Union from 15 to 25 to 27. The key issue was not about bringing the economic performances of the countries joining up to a standard; the key issue for them was to ensure that their human rights provisions were raised to decent standards, in practice as well as theory. Without the bedrock of the European convention on human rights, and the other rights added to it and now described in the charter, that change—from which we have benefited and which was supported by every party in the House—could not have occurred.
How does it advance our democracy, in the terms in which the Secretary of State has put it, to arrive at a position in which rulings by the European Court of Justice on these enormously important matters displace Acts of Parliament, which are decided by the voters of this country on the basis of manifestos in general elections?
The problem for the hon. Gentleman is this: a manifesto was put forward by the Conservative party in 1970; I do not know whether he voted Conservative in that election, but it is beyond peradventure that he was alive for it. That manifesto said that if the Conservative party was elected to government—and it was, on 18 June 1970—it would seek to negotiate our entry to the European Union. [Interruption.] Somebody said sotto voce that there was no charter of human rights; I shall come back to that. The House voted, as the other place did, in favour of membership. Four years later, the Labour Government said that they wished to renegotiate certain aspects of our membership arrangements, and that was put to a referendum. That was endorsed by the British people by a margin of two to one.
The European Court of Justice has been fundamental to the operation of the European Union ever since it was formed. That is my answer to the hon. Gentleman; I know that he disagrees with the mechanisms of the European Union, but it is for him and the hon. Member for Castle Point (Bob Spink) to have that argument in the Conservative party and commit it to what is in my judgment its most consistent position, although I disagree with it: leaving the European Union.
As regards the European court of fundamental rights, duplication has been suggested. Would it not have been better had the money that is being spent on this been put towards the European courts that already exist, which have a backlog of cases? As for the powers of the European court of fundamental rights, would the British people be able, for instance, to go to that court to complain about a governing party that promised a referendum on the European constitution but then denied it to us a year or so later?
A number of hon. Gentlemen are showing that they wish to intervene. If they will allow me to make some progress, I promise that they will all get in before I conclude.
For the future interests of Britain, and of Europe, it is right that we collectively take further steps to make the promotion of human rights integral to being part of Europe. That is the explanation for the measures within the Lisbon treaty—the charter, the accession of the European Union to the European convention on human rights, and further provisions regarding the rights of the child.
The Lord Chancellor has rapidly touched on the fundamental issue. I agree that the adherence of the European Union to the European convention on human rights is an absolutely key issue in promoting human rights within the Union. However, he needs to explain to the House why, if that adherence is to take place—it is long overdue—the charter of fundamental rights should then be imposed in the manner proposed by the treaty of Lisbon.
I have to say to the hon. Gentleman that I honestly think that the Opposition are trying to make silk purses out of sows’ ears. They have no case. Let me go through the charter and recite a series of rights that are already accepted across Europe as fundamental to the way in which our democracies operate. When the hon. Member for Aylesbury (Mr. Lidington) or the hon. Member for Beaconsfield (Mr. Grieve) stand up to speak, the first thing that I would like to hear is which of these rights they object to. Are they against
“respect for…private and family life”?
Are they against
“the right to liberty and security”?
Are they against—
On a point of order, Madam Deputy Speaker. I am sorry, but this is just a point of clarification. We are now getting into the detail of the Bill, which I understood to be for the Committee stage. Are we moving into the Committee stage or are we still going through this nonsensical motion process?
I am grateful to the Secretary of State. He stated earlier that eastern European countries have somehow benefited from these new human rights laws coming out of the European Union, and that so would we in the United Kingdom. The fact is that those countries were only temporarily isolated behind the iron curtain. They had developed their own human rights for generations—for centuries—and they reverted back to them when communism fell; they did not learn them from the European Union.
The history of states in eastern Europe—of course, I bow to the hon. Gentleman’s superior knowledge, particularly in respect of Poland—varies, as it does in western European states. Nevertheless, some of the eastern European states had not had any experience of democracy until after the Berlin wall fell—that is simply a matter of straightforward history.
The right hon. Gentleman will recall my asking him in a Select Committee about new rights. He asserted that there are no new rights in the charter, which was repeated by the Foreign Secretary last October. However, the right in article 13, which states that
“scientific research shall be free of constraint”,
is a new right. According to the Government’s own explanation, it is derived from no existing source. I object to that provision because I support animal welfare, and I object to the concept of all scientific research being entirely free of constraint. Parliament should legislate to constrain such research. Does he agree that that is a new right, and does he agree that it is a highly controversial matter which would be much better debated in a national Parliament, rather than asserted unconditionally in a foreign jurisdiction?
I shall come on to the issue of those awful foreigners who are trying to impose their will against—[Hon. Members: “Answer the question!”] I am going to answer the question. As far as article 13 is concerned, that right is already part of EU law. It is the same as the right in article 10 in the European convention on human rights.
I will give way later, but I am going to make some progress.
I note that the only specific right mentioned in the charter of fundamental rights to which the Conservative party now takes exception—perhaps the hon. Member for Aylesbury has a longer list—is the right concerning scientific and arts research, and that was objected to only by the right hon. Member for Wells. The right hon. Gentleman will know that these rights are balanced against other rights, including those of animals. There is a clear protocol relating to the accession of the European convention on human rights by the European Union, which makes this clear:
“The agreement referred to in Article 1 shall ensure that accession of the Union shall not affect the competences of the Union or the powers...It shall ensure that nothing therein affects the situation of Member States in relation to the European Convention, in particular in relation to the Protocols thereto”.
The right hon. Gentleman has asserted several times that nothing in the charter of fundamental rights creates new rights, and that the rights there already exist. However, in its website commentary on the treaty of Lisbon, the European Commission says that
“the Treaty of Lisbon preserves existing rights while introducing new ones.”
Is he saying that the Commission is wrong?
There is provenance for every one of the rights contained in the charter. [Hon. Members: “Provenance?”] Yes, provenance. If the hon. Gentleman is saying that he objects to a particular right, when he comes to make his speech let him say in his own way to which of the rights he objects.
To recognise the advances that have undoubtedly been made in human rights in many parts of Europe, we need only compare the situation now to that 70 years ago. Would my right hon. Friend take the opportunity not to allow history to be rewritten? Hungary and Poland, in particular, pre-war, were deeply flawed, authoritarian states. They were disgusting states.
As someone with some lineage connected to Poland, let me tell my hon. Friend the Member for Walsall, North (Mr. Winnick) that it was not a fascist state, but neither was it a perfect democracy. We in England do not have the best of records on anti-Semitism at that time.
I put it to my right hon. Friend the Secretary of State that, unless we wish to revert to a Hobbesian world of a war of all against all, contract and covenant between people and nations are necessary. In the World Trade Organisation, which is a treaty organisation, we have to accept derogation of our sovereignty, and it tells us what to do. The same applies to the International Labour Organisation, the European convention on human rights, the Council of Europe and so on. The Opposition have a choice: leave the EU—
I agree with my right hon. Friend. Any obligations to which we sign up, as long as they exist under international treaties, include duties as well as benefits. We must always balance the one against the other.
The hon. Member for Aylesbury mentioned the European Commission website. The Commission clearly set out the prime objective underlying the charter as making European Union citizens’ rights more visible. The text does not establish new rights; that was never the intention. It assembles existing rights, which were previously scattered over a range of sources and therefore not always easy to trace.
Today, we live in a different age from when the European Union was founded. It comprised six, nine and then 15 states. It has almost doubled in size, bringing together 27 politically and culturally diverse members. The time is not beyond the memory of many in the House when a trip across the channel required a feat of logistics, including having to take one’s passport to the bank to withdraw a maximum of £250-worth of European currency in one year.
Nowadays, British citizens make 55 million trips to Europe each year. Around three quarters of a million of us have homes in Spain, with a further quarter of a million with homes in France, while hundreds of thousands have settled or work elsewhere in the EU. Today, our constituents benefit from the EU and think nothing of living, working and travelling across it.
There is a damaging fallacy that human rights are something for the “other”. The old home guard is wheeled out in the name of the defence of British interests. They paint a dismal picture of some form of Napoleonic resurgence, threatening the borders and well-being of the United Kingdom. The only response as they see it—we experienced it again this afternoon—is drawing back from Europe into the comfort of narrow parochialism. They seem to miss the fact that the British interest of the British people—yes, those who fly the flag and want it to be flown more often—is best served by being in Europe so that we can influence Europe. I want my constituents to receive the same protection when on holiday or on business abroad in Europe as they are afforded at home.
Before giving way, let me first make the same argument in the House as I do in discussions in my constituency when the issue arises. I ask my constituents where they go on holiday, whether they know anyone with an apartment or home in Spain, Italy or France, or anyone who has made use of his or her right to work elsewhere in the European Union. I point out to them that they would have far fewer rights when living or working abroad without our participation in Europe.
The Government ensured through the Human Rights Act 1998 that the rights contained in the convention were brought home to become directly enforceable by British judges in British courts.
The rights that the Secretary of State has described existed long before the charter of fundamental rights. May I take him back to the question that my hon. Friend the Member for Aylesbury (Mr. Lidington) asked? Since the European Union wishes to accede to the convention and the Government claim that the charter will not create any justiciable rights in this country, what practical benefit is the charter for the people of this country? Is the high point of the Government’s case that they are protecting us from the wonderful document’s having any effect?
The benefit of the charter is, as the European Commission said, that it assembles existing rights, which were previously scattered over a range of sources and therefore not always easy to trace. [Interruption.] It concerns existing rights and I am glad that the hon. Gentleman acknowledges that. Perhaps he will tell his Front-Bench colleagues.
Does my right hon. Friend agree that the previous intervention demonstrates the difficulty that we on this side of the House have with the Opposition? They do not understand that membership of the European Union is a two-way street or that the rights of UK citizens when in other countries are protected through such provisions. It was the same in the debate on justice and home affairs, when they did not understand that minimum standards in criminal law could affect UK citizens beneficially when abroad. Similarly, in the debate on energy the issue for the Tories seemed to be all about people nicking our energy supplies in time of crisis, rather than energy supplies from other member states coming here. It is the same in this debate—they do not understand the protections that our citizens can enjoy abroad owing to those fundamental rights.
I absolutely agree with my hon. Friend. I know that he has had the privilege and benefit of attending each of these debates and hearing what has been said. Yes, the European Union is a two-way street, but my point to my constituents, which they accept, is that when they go abroad, they want better rights than they would be afforded in many non-EU foreign countries. They benefit in EU countries, but they also want to know that if, for instance, they want to enforce their property rights, they can do so better within the European Union.
I have the greatest affection for my right hon. Friend and I always enjoy the sight of him skating very fast on thin ice. I am not a lawyer and this debate is in danger of becoming an argument between lawyers, so will he identify one new right—just one—that the legislation will introduce?
The answer—[Interruption.] The answer to my hon. Friend—[Hon. Members: “She’s marvellous!”] I absolutely agree—she is marvellous, and I love her to bits. The answer to my hon. Friend, with whom I have a long and close association going back some years, is that the charter does not create new rights; rather, it brings together rights that were already there, as I have just said.
Will the Lord Chancellor confirm that every country that is a member of the European Union is also a signatory of the European convention on human rights? Indeed, I believe that every single one has incorporated it. In view of that, what is the purpose of the charter of fundamental rights? If it is innocuous, as he says it is, why have the Government negotiated a protocol that will supposedly make it ineffective?
Yes, I can, although many of those rights applied in any event. I can also say what the benefit is of assembling those rights together in a single document. It is that the people of Britain, among many others, can see what they are in a single document, rather than having to delve into various obscure—
Not all for me, for Pete’s sake! I have given way to the hon. Gentleman already. I will give way to him later, but now I must make some progress.
As the House knows, the charter was originally drafted as a declaratory document agreed at the Cologne summit in 1999. Before agreeing that the charter should have treaty status, the Government insisted that greater clarity was required to define precisely what the scope and effect of such a status would be, which is the answer to the hon. Member for Beaconsfield. We pledged that nothing in the charter of fundamental rights would give national or European courts any new powers to strike down or reinterpret UK law, including with regard to labour and social legislation. That is what we have delivered.
We have also negotiated an extensive package of safeguards. Four measures in particular have been put in place: the new wording of article 6 of the Lisbon treaty; the charter’s horizontal articles, found in articles 51 and 52; the revised official explanations accompanying the charter; and the binding protocol on page 172. Individually and taken together, those measures represent a substantial degree of protection for British interests. I will deal with them in turn.
The amended article 6 states:
“The provisions of the Charter shall not extend in any way the competencies of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general principles…of the Charter governing its interpretation and application and with due regard to the explanations…in the Charter”.
The horizontal articles contained in title VII stipulate:
“The provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and”,
“to the Member States only when they are implementing Union law...The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.”
In addition, the official explanations to the charter, which indicate the source of the rights and principles it contains, provide further clarification:
“The explanations drawn up as a way of providing guidance in the interpretation of the Charter shall be given due regard by the courts… and…Member States”.
The explanations demonstrate that the charter does not create any new rights, but reaffirms rights that are already recognised.
The final measure, the protocol, which we have secured along with Poland, completes the protection. The language is unusually clear for an EU instrument:
“The Charter does not extend the ability of the Court of Justice of the EU, or any court or tribunal of Poland or the United Kingdom, to find that laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. 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 or the United Kingdom has provided for such rights in its national law.”
Then there is a further limb to the protocol.
While the charter may indeed not provide for new rights, the European Court will for the first time be able to interpret that charter in countries where it is justiciable and thereby—the charter is drafted in very broad terms—effectively make major new law, as supreme courts do around the world. Does that not explain why the protocol is crucial, but only if it is watertight? Will the Secretary of State explain why it was not made clear when the terms of the protocol were negotiated that it would apply regardless of any other European treaty or other law made by the European Court? Without that, there is a real risk, notwithstanding the generally welcome protocol, that a loophole within it may negate its purpose.
I thank the right hon. and learned Gentleman for that helpful intervention. It is our view that the protocol—it should be taken together with the other three safeguards, but this applies even to the terms of the protocol itself—contains the safeguards that the right hon. and learned Gentleman and the British Government seek. [Interruption.] If he thinks otherwise, I look forward to hearing his speech, but that is our view. It is very clear that the safeguards that I have described mean that the charter does not introduce new justiciable rights and that the courts, domestic or European, are being given no new powers to overrule the will of the House.
I should point out for the avoidance of doubt, and since the issue is raised teasingly in the Opposition amendment, that the protocol does not operate like an opt-out, but the broad purpose is similar: opt-outs and protocols are there to provide safeguards for the UK. It does not disapply rights to UK citizens; given that the United Kingdom fully accepts the rights reaffirmed in the charter, there would be no need to do so. However, it ensures that what is in the charter is not additionally justiciable, as it might have been had it not been for the charter.
No, I am going to make some progress and deal with the issue of labour rights, which is of concern to Members on both sides of the House. Paradoxically, critics of the charter either bemoan the potential disparity in the level of workers’ rights across Europe, which they suggest will lead to legal chaos, or alternatively complain that the charter will open up our own employment laws to new legal challenges. Let me clarify the position.
UK employees and citizens in general will not have fewer rights because of the protocol. In any event, as I said, the charter does not provide any new rights. Rather, it simply makes the rights that we already have more visible, and once the treaty comes into effect, it calls on EU institutions and member states to abide by them when they are implementing EU law. I have already quoted what the European Commission sets out on its website.
It is true that, under the treaty establishing the European Community, the European Union already has power to legislate, by unanimity, for collective defence of workers’ interests in the social chapter, but it has no powers to decide what rights to strike should exist in national law. Article 137 states:
“The provisions of this article shall not apply to pay, the right of association, the right to strike or the right to impose lockouts”.
The Lisbon treaty does not change that; nor does the charter affect it. The explanation to Article 28 is explicit:
“The modalities and limits for the exercise of collective action, including strike action, come under national laws and principles”.
The existing rights and principles recorded in the charter will continue to work as they always have. The protocol serves to put that beyond doubt, but it does not create any disparity between workers across Europe.
No; I want to make some progress.
The Government can be proud of their record in championing the rights of British workers. Perhaps the most substantial, as well as the most symbolic, difference between us in the Labour Government and Opposition Members lies in the social chapter. As my right hon. Friend the Member for Rotherham put it so aptly,
“There is only one major EU agreement Britain has signed up to that differs from all the EU rules Conservatives lived with up to 1997. That is the social chapter.”
I am proud that we signed up to it.
The social chapter was designed to create a minimum guaranteed level of social protection across Europe. It prevents countries from competing unfairly by allowing their workers to be exploited. I should have thought that, given all the concern about competition from eastern European workers, the Conservative party would now have realised the error of its ways. The last Conservative Government negotiated an opt-out, but we had a manifesto commitment, and we joined the chapter in 1997. As many Conservatives think that there are demons in it, let me mention that it includes the right to paid maternity and paternity leave—is the House opposed to that?—and the right not to be discriminated against on grounds of sexuality, religion or belief, or age.
The right hon. Member for Witney (Mr. Cameron) has said that he supports flexible working, yet he told his party conference:
“I can tell you that we will get out of the European Social Chapter.”
Opting out of social chapter rights would simply make it harder for parents to balance work and their caring responsibilities, and could even remove the right to paid holidays. The Opposition have consistently opposed the basic minimum standards enshrined in the chapter and reiterated in the treaty, which have been of particular benefit to low-paid women workers. I hope that the hon. Member for Aylesbury will tell us which elements of the chapter—they have delivered real rights and benefits to our citizens—the Conservative party plans to remove.
As well as clarifying and guaranteeing the rights of men and women, the treaty means that, for the first time, the European Union establishes the rights of the child as one of the general objectives of the Union.
I look forward to hearing from my right hon. Friend about the rights of children, which the treaty fundamentally improves. However, it is clear that parts of article 137—article 153 of the consolidated treaty—will be subject to a passerelle clause. I am thinking of
“protection of workers where their employment contract is terminated…the information and consultation of workers….representation and collective defence of the interests of workers and employers, including co-determination”.
Should the passerelle be applied, those provisions might be subject to qualified majority voting rather than unanimity, and this country could lose its veto. Other countries could decide to override it if they gained a majority in the Council.
Where there is a passerelle clause, the move from unanimity to qualified majority voting can take place only if unanimity itself exists. We have an absolute veto in relation to whether we wish to move to qualified majority voting. Moreover—I know that this is not a matter to be discussed today, but I will mention it in passing—the Bill makes special provision whereby the House must vote in respect of any move from unanimity to qualified majority voting via a passerelle.
I am grateful to the right hon. Gentleman for giving way—although, to add a note of sourness, I feel that I must say that his performance would have been better given in Blackburn market.
Two courts are relevant to this House: the European Court of Justice sitting at Strasbourg and the European Court for this treaty arrangement. Where there is a conflict in interpretation of human rights, which court prevails?
I am grateful to my right hon. Friend for taking so many interventions. I share his pleasure about the directive he mentioned on workers’ rights, but may I draw his attention to title IV of the charter, for which there is the special provision that he has referred to? Will he explain why we have decided that title IV will not create any new justiciable rights that are applicable to the United Kingdom? Finally, will he say whether it is the UK’s intention to secure a majority for the agency workers directive?
No; I am going to finish, and I have already given way to the hon. Gentleman.
To conclude my previous point, as my hon. Friend the Member for Hemsworth (Jon Trickett) knows, the issue of agency workers has been the subject of considerable discussion in this country and between us and other member states. That can be, and will be—there is no reason why it should not be—resolved within existing treaty arrangements, notwithstanding the fact that we do not currently have the benefit of the treaty including the charter.
I will not give way again, as I wish to conclude—I am sorry to have to disappoint the House by saying that my speech will shortly come to an end.
I firmly believe, as do the Government, that Britain’s best interests are served by working with Europe and by being closely involved in the Union, but on our terms. The negotiations that led to the Lisbon treaty have achieved that. British interests are strengthened through a series of opt-ins and opt-outs, and in the matter of the charter, not least through the binding protocol. I hope that there is cross-party consensus that there are overwhelming benefits to the British people as a result of our honouring international commitments regarding human rights. Even those on the Opposition Front Bench, in spite of the endless inconsistencies and contradictions of their policy in this area, seem now to have realised that it would be folly of the gravest kind to do what many Opposition Members were toying with doing not long ago: withdrawing from the European convention on human rights. I welcome at least that late change.
I also issue a warning, however. I fear that those who seek to attack the treaty by attacking its human rights provisions are at risk of doing great harm to the interests of the British people, as well as being injurious to our international reputation. We brought rights home to make it easier for our citizens to access their rights, and to make human rights considerations part and parcel of policy making. It is now time that we reinforce that protection across the entire EU regardless of where British citizens happen to be. We can do that through the Lisbon treaty—through the human rights provisions linked to it and the extensive safeguards that we have secured—and I commend the motion to the House.
I beg to move, to leave out from “House” to end and add instead thereof:
“disapproves of the Government’s policy towards the Treaty of Lisbon in respect of human rights because of its incoherence and inconsistency on the status of the Charter of Fundamental Rights in the United Kingdom; notes that after the Intergovernmental Conference was agreed the previous Prime Minister told the House that “it is absolutely clear that we have an opt-out from both the Charter and judicial and home affairs”; notes that the Minister for Europe told the House when debating the Treaty of Lisbon that “the fact is that the United Kingdom has neither sought nor achieved an opt-out on the Charter of Fundamental Rights”; and calls on the Government to adopt a clear and consistent policy whose merits Parliament may then judge.”
I am delighted that the Secretary of State opened the debate on behalf of the Government. I congratulate him on his speech, which was a masterpiece of obfuscation. Opposition Members admire the way in which he shimmies around any challenge to do with the substance of the charter of fundamental rights and the content of the treaty. To develop the image of the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), we see the right hon. Gentleman as the Kyran Bracken of the Government Front Bench. It is not just his experience as Foreign Secretary that commends him to us. Conservative Members’ regard for the right hon. Gentleman is only enhanced by knowing that it was he who bounced the former Prime Minister into promising a referendum on the European constitution. After the French and Dutch votes he pledged that
“there will be no proposals made by this Government that seek to bring in this constitutional treaty, or elements of it, by the back door.”—[Official Report, 6 June 2005; Vol. 434, c. 1000.]
The right hon. Gentleman knows what my right hon. Friend the Leader of the Opposition said about seeking to restore national Parliaments’ control of employment measures. He will have to wait with bated breath for the detailed presentation of Conservative policy, but I can promise him that his appetite will be satisfied well before the next election. [Interruption.] I am always impressed by the way in which Labour Members become increasingly excited by the prospect of what the future Conservative Government will do.
The right hon. Member for Rotherham (Mr. MacShane) tried to come to the Lord Chancellor’s rescue, but Conservative Members know what the Lord Chancellor said about his commitments on consulting the people, we know what he really thinks and we still cherish the hope, even at this late stage, that he will be prepared to step up to say what he privately believes about the need to consult the people.
There is a sense of poetic justice in our debating human rights today, because yesterday’s events and the treatment meted out to the right hon. Member for Birkenhead (Mr. Field), and the hon. Members for Manchester, Blackley (Graham Stringer), for Birmingham, Edgbaston (Ms Stuart) and for Vauxhall (Kate Hoey) remind us that the rights to free speech, due process and a fair trial need to be defended today with vigilance and determination. The Prime Minister must have set some new standard in ordering the persecution of four Members of Parliament for seeking to deliver something that not only they but he had promised the British people at the previous general election.
Let me deal with the motion, the treaty’s content and its human rights elements. Three key elements of the treaty should concern us this afternoon. Paragraph 2 of article 6 provides for the European Union to accede to the European convention on human rights, but the Secretary of State did not give us a likely timetable for that. It might help if the Minister for Europe’s response threw more light on that proposed time scale and on whether negotiating problems must still be overcome before accession.
The Secretary of State assured my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) that in the event of a clash of judgments between the two courts, the European Court of Human Rights’ decision would take precedence, but I can find nothing in the treaty text to support the Government’s assertion. Ministers have a duty to explain in much greater detail exactly how such a conflict would be reconciled.
Perhaps I may assist my hon. Friend. The Secretary of State is wholly wrong in his assertion, because article 6 clearly states:
“Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.”
Therefore, the European Court of Justice would interpret the matter and would therefore take precedence.
In the absence of any detailed argument to the contrary, I find my hon. Friend’s case persuasive. This is not an academic point, because such a clash actually happened when the ECJ ruled that the treaties did not permit Britain to allow Gibraltarians to vote in European parliamentary elections and the European Court of Human Rights declared that Britain’s failure to give such votes to Gibraltarians left this country in breach of the European convention on human rights.
Does my hon. Friend agree that the major fallacy in the Secretary of State’s argument is that all these rights, if we like them, can be granted by this Parliament and interpreted and enforced through our courts, with the advantage that if we do not like them as they evolve we can amend them here without needing the agreement of 26 other member states?
Surely the point is that the European convention on human rights provides explicitly that the European Court of Human Rights will interpret rights under the convention. Thus, in acceding to the European convention on human rights, the European Union will be bound not only by the principles of the convention, but by the decision of the Court in interpreting the convention. That is the point, and that is why the hon. Member for Stone (Mr. Cash) is wrong.
The problem with the right hon. Lady’s assertion is that we do not yet know what the text of any accession agreement between the EU and the ECHR will be. The language that my hon. Friend the Member for Stone (Mr. Cash) quoted indicates that the European treaties already contain provisions that tilt the argument in the opposite direction.
The Government have done a somersault on children’s rights. In the early stages, the right hon. Member for Neath (Mr. Hain) tried hard to delete any mention of children’s rights from the text, on the grounds that its inclusion would be an extension of EU competence. Now, Ministers hail the inclusion of a reference to children’s rights as some negotiating triumph. The Government still refuse to come clean over whether the words do matter and they made a concession of some significance during negotiations, or whether they believe that the reference is innocuous and changes nothing about EU competence. In the latter case, it hardly merits the fanfares that they have been busy blowing.
The Government’s failure to be straight with Parliament and the British people on that point encapsulates what is wrong with their approach to this treaty and how, in particular, they have dealt with the impact of the charter of fundamental rights—the subject that will, rightly, be the focus of most of today’s debate, the prime purpose of which should be to probe the Government on their answers to two questions. First, does the fact that the Lisbon treaty gives legal force to the charter of fundamental rights transfer powers, either actually or potentially, from national Parliaments and Governments to the institutions of the Union, and especially to the Court of Justice? Secondly, if the treaty does have such an effect, do the words of the protocol that the Government have secured provide the safeguards for this Parliament that Ministers claim?
We know for certain that the Government fought hard to resist any incorporation of the charter in the treaty. In fact, the notes used by the right hon. Member for Neath at the time of the convention said that the objective of the British Government was to ensure that the charter was relegated from the text of the treaty into “only a protocol”. The use of the word “only” in that context should lead us to question the significance of the protocol to which the Government attach such importance today.
The Government rely on three basic arguments to defend their position.
The hon. Gentleman says that the debate has to answer the question of whether the charter of fundamental rights extends the competences of the Union. Has he read article 6.1? It states:
“The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.”
Yes. I want to deal with exactly that point in greater detail.
The Government have relied on three arguments to defend their position. First, they claim that the charter is nothing more than a declaratory statement and that it merely codifies rights that already exist. The Foreign Secretary asserted that as recently as 18 October last year, when he wrote to the Chairman of the European Scrutiny Committee to say that the charter
“only records existing rights; it does not create any new rights”.
Earlier this afternoon, the Secretary of State for Justice said that the charter describes rights that already exist.
Secondly, like the hon. Member for Kingston and Surbiton (Mr. Davey), the Government argue that the words of article 6 of the consolidated treaty, together with the so-called horizontal articles of the charter, protect all member states—not only the UK or Poland—from the creation of new rights by the institutions of the Union.
Thirdly, Ministers claim that the protocol to the treaty in respect of this country and Poland alone makes it impossible for decisions of the European Court or the Commission to overturn the definitions of rights determined by our domestic law. The trouble is that when one starts to examine those claims in any detail, one realises that the safeguards appear less than watertight, as the European Scrutiny Committee found in its most recent report.
One also has to challenge the Government on a point of basic principle. If, as Ministers say, all the rights that are included in the charter already exist in both domestic law and the European convention on human rights, what is the purpose of the charter of fundamental rights being judicable by the European Court of Justice, too?
The charter sets out a number of rights that would, as a consequence of Lisbon, become for the first time rights that are embodied in EU law and judicable by the ECJ, even if they are not new rights. Most obviously, the recreation in the Lisbon treaty of the EU as a unitary legal entity means that subjects such as policing and criminal justice laws passed after Lisbon could be interpreted by the ECJ with the Court applying the rights and principles set out in the charter.
The treaty goes beyond the EU simply signing up to the European convention on human rights. The charter also includes a number of articles derived from other international agreements that have been entered into bilaterally by one or more of the member states. Those rights, too, exist in those member states but they have not hitherto been part of EU law and subject to the jurisdiction of the ECJ. In practice, when we hear the Government’s arguments and look at what Ministers are doing and saying, we find that they are not behaving as though they believe that no new rights are being created. If there were no new rights and no new interpretations permitted of existing rights, why is there a need for the protocol at all?
The same applies to the argument put by the hon. Member for Kingston and Surbiton. If article 6, and in particular paragraphs 1 and 2, do not under any circumstances permit the extension of EU competence or the interpretation by the court of what is meant by EU competence, it is difficult to see the justification for the protocol in which the Government place such store.
May I refer the hon. Gentleman to an article by Professor Dashwood? He asked that same question:
“What then is the purpose of the Charter Protocol?”
His ruling was that it was
“Simply, it would appear, to make assurance doubly sure for those in the United Kingdom that remain determined to see the charter as a ravening beast, when it is really a paper tiger.”
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. Gentleman 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 IV—the so-called solidarity title—deals with employment and industrial relations, but it raises 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.
Was my hon. Friend struck—as I was—by the fact that when our right hon. and learned Friend the Member for Kensington and Chelsea (Sir Malcolm Rifkind) put that argument to the Lord Chancellor during the right hon. Gentleman’s speech he merely asserted that it was not the case and then moved the subject rapidly on?
I thought that our right hon. and learned Friend put the point well and that the Lord Chancellor, with customary skill, avoided providing a persuasive answer, just as the Government have been unable, as far as I can see, to provide a persuasive answer to the comments of the European Scrutiny Committee.
Paragraph 38 of the Committee’s report said plainly:
“If the ECJ gives a ruling in a case arising outside the UK on a measure which also applies in the UK, the duty to interpret the measure in accordance with that ruling arises, not under the Charter, but under the UK’s other Treaty obligations. Nothing in the Protocol appears to excuse the UK from this obligation.”
In paragraph 40, the Committee said that
“we doubt if it is possible to guarantee that it”—
“will not be developed and amplified by the ECJ. We equally doubt if it is possible to guarantee that the ECJ will not draw on the Charter as a new source for interpreting measures of Union law such as Directives”.
In paragraph 41, the Committee concluded:
“If the ECJ does interpret a measure of Union law in this way, we believe the resulting interpretation would be binding in the UK, because of the UK’s treaty obligations, notably the duty of sincere co-operation under Article 4(3) EU. These obligations are not excluded or restricted by the Protocol. On the contrary, and as the recitals make clear, the Protocol is subject to those obligations.”
Does my hon. Friend agree that if the Government had been more competent in negotiating the terms of the protocol the problem would not have arisen? It would have been easy to say that the protocol should have effect regardless of other treaties or other EU law. In that way the protocol would have been watertight.
In fact, what the right hon. and learned Member for Kensington and Chelsea (Sir Malcolm Rifkind) proposes, and I think Conservative Front Benchers accept, is that Britain should have a unilateral right to take no notice of ECJ rulings. On that basis, the single market collapses.
That is not what my right hon. and learned Friend the Member for Kensington and Chelsea was advocating. The right hon. Member for Rotherham (Mr. MacShane) ignores the fact that a clause that such and such a protocol should apply notwithstanding other treaty provisions or European Court of Justice judgments is included in a couple of protocols already agreed and appended to European Union treaties, so there is a precedent.
We confirm that point in other areas of EU law, which are not always applied uniformly; for example, in other treaties the UK has opt-outs or opt-ins on protocols and when the ECJ rules on those areas of law it is not able to apply its rulings uniformly across the EU. Does the hon. Gentleman accept that point?
Is there not a simpler point? The European Court of Justice is a federalist, activist Court, which over time always makes judgments in favour of more European power, so why take the risk? We could opt out of the whole provision and not include it in the treaty.
It is not only my right hon. Friend who says that Britain should opt out of the charter of fundamental rights; it was originally the position of the Labour Government, but they have subsequently abandoned it. If we further consider the likely consequences of a European Court of Justice decision deriving from the application of charter rights, we can see that irrespective of the protocol, any company that operates in more than one EU member state will change its practices across the EU, even in the United Kingdom or Poland, once the ECJ has given a judgment on what has gone on in one particular country.
Perhaps I can help my hon. Friend and the hon. Member for Kingston and Surbiton (Mr. Davey), whose colleague, Liberal Democrat MEP Andrew Duff, has said in a document called “A primer on the EU’s reform treaty”:
“Regardless of the UK’s exclusion clause, the EU courts will be bound to develop jurisprudence in fundamental rights matters which steadily evolve into general principles of EU law which all member states must respect.”
That makes it clear that what my hon. Friend the Member for Aylesbury (Mr. Lidington) says is in danger of happening is exactly what will happen. Perhaps the hon. Member for Kingston and Surbiton ought to look at what his colleagues elsewhere are saying.
I am grateful to the hon. Gentleman for giving way; he is being very generous. He is eliding two things. The European Court of Justice may make a decision on an area in which the United Kingdom has rights, and that would affect us, but it also may make decisions about areas on which we do not have national rights, and that would not affect us. That is set out in paragraph 2 of article 1 of the protocol, which says:
“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 or the United Kingdom has provided for such rights in its national law.”
If an ECJ decision is on an area where we have not provided national rights, the situation is different.
Unusually, the hon. Gentleman has failed to understand the thrust of the argument put not only by me but by the European Scrutiny Committee in its report: that even if we give the Government the benefit of the doubt and say that the protocol and the language of the treaty protect the United Kingdom from the imposition of ECJ decisions that directly override our national law, we are still left with the issue of what happens when the ECJ takes a decision in respect of a country other than the United Kingdom or Poland, and that decision has consequences for the way in which we in the United Kingdom conduct our affairs.
On that point, does my hon. Friend share the European Scrutiny Committee’s concern about the preamble to the protocol? It reaffirms
“that this Protocol is without prejudice to other obligations devolving upon…the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally”.
The Committee was concerned that that meant just what has been suggested—that the United Kingdom’s other obligations under European law include ensuring even application throughout the European Union, including in the United Kingdom, of ECJ judgments that relate to other member states where the charter does have effect. That would give effect—
I shall try to make some progress and bring my remarks to a close. I am grateful to my hon. Friend the Member for Hertsmere (Mr. Clappison) for making an important point and further drawing out that element of the European Scrutiny Committee’s report.
One must bear it in mind that any new legislation initiated by the European Commission, and affecting the entire European Union, is certain to follow the decisions made by the European Court of Justice on specific cases. Even if the protocol means that the United Kingdom is exempt for a time, once a decision has been made in respect of, say, Austria or Romania, subsequent legislation from the Commission on that topic will follow not the position in the United Kingdom but the situation brought about by the ECJ judgment. That legislation will then become binding on the United Kingdom.
The only way in which the protocol could insulate the United Kingdom from the impact of Court decisions based on the charter would be either for the protocol to have included the kind of clause described by my right hon. and learned Friend the Member for Kensington and Chelsea (Sir Malcolm Rifkind), or for the Court of Justice to permit the development of two separate systems of jurisprudence within the European Union—one for the United Kingdom and Poland, and the other for all the other member states. I see nothing in the charter, nothing in the treaty and nothing at all in the traditions of the European Court of Justice that makes that seem remotely likely.
I fear that once again on this issue, as on others in respect of Lisbon, the Government have been trying to pull the wool over our eyes. We have had from successive Ministers a series of different positions on the charter of fundamental rights. We first had the then Minister for Europe, the right hon. Member for Leicester, East (Keith Vaz), saying that it was of no more significance than The Beano. Then, as recently as last June, the former Prime Minister declared that
“we will not accept a treaty that allows the Charter of Fundamental Rights to change UK law in any way.”
A month later in their White Paper the Government had slithered into a position where they were committed simply to ensure
“that our existing labour and social legislation remains intact”.
Back in June, Tony Blair was insisting:
“It is absolutely clear that we have an opt-out from both the charter and judicial and home affairs”—[Official Report, 25 June 2007; Vol. 462, c. 37.]
and just weeks after that, the current Minister for Europe told the Scrutiny Committee:
“The UK specific protocol which the UK secured is not an ‘opt out’ from the Charter. Rather, the protocol clarifies the effect that the Charter will have in the UK.”
By January this year the Minister was saying that
“the United Kingdom has neither sought nor achieved an opt-out from the charter of fundamental rights”—[Official Report, 28 January 2008; Vol. 471, c. 34.]—
a fairly shameless rewriting of history, even by the standards of the present Government.
The British people deserved their Government to speak to them on these issues with both clarity and candour. Instead, again and again, we have been subjected to spin. Nothing that the Secretary of State has said this afternoon has persuaded me that we can have confidence in the Government’s assurances and promises any more than we were able to believe those that they have repeated to Parliament and the public over the past few years. For that reason, I ask the House to support the Opposition amendment tonight.
We have had a great deal of discussion of the charter of fundamental rights. I am not sure that I can add substantially to it, other than to say that I believe it brings existing rights together and makes them more visible, as the charter says, drawing them from a variety of different sources—civil, political, economic and social.
Although we have the protocol, there is nothing in the charter itself that we could realistically object to. Indeed, it would do a great deal to strengthen our rights in this country, and I would like to see it in force in the United Kingdom, even though the protocol ensures that it does not apply. As it is drawn, the charter applies only in relation to European Union law or action taken under the treaty. Although the charter is made legally binding by the treaty, that is only in the context of European law. It contains not just rights but aspirational principles.
The Fundamental Rights Agency has the job of monitoring compliance with the charter. The agency emerged in 2003 under the Italian presidency and was drawn from the existing Monitoring Centre on Racism and Xenophobia. Much of its residual experience is drawn from that and that is reflected in the future work pattern of the Fundamental Rights Agency. The agency was negotiated under the UK presidency as a first-pillar agency under article 308 of the Nice treaty. Its duty is to enforce the charter of fundamental rights and, although other human rights instruments could inform its work, the FRA cannot actually enforce them. Its job is to monitor member states and EU institutions. It is also its job to monitor accession states but only after accession has been completed, which is a problem. I may be wrong, but I do not think that the charter and the FRA are taken into account during the negotiations for accession. This happens only after an accession agreement has been signed. That reflects a gap in the effectiveness of the agency and the charter. A much stronger lever could have been provided in the accession processes for Bulgaria and Romania, for example, where significant human rights issues needed to be addressed before the accession process was completed. That is doubly so in the case of Turkey where significant human rights issues have to be addressed before the accession process is completed.
There has been much debate about why we should have the charter—and, indeed, the FRA—when we already have the European convention on human rights and the Council of Europe, but until the EU accedes to the European convention, however, there is no monitoring of EU institutions for human rights compliance without the FRA. The agency can ultimately look at the gap in performance between the EU institutions such as the Commission and the Parliament.
The hon. Gentleman is making an important point about the need for the European Union to adhere to the European convention on human rights, and the fact that it has not been unknown for the Commission, for example, to violate human rights through its activities. Does he share my anxiety that, although it is implicit in the treaty that accession to the ECHR will take place, the mechanism and the precise text for achieving that are not before us? Such information could give us the kind of reassurance that the Lord Chancellor described when he said that the mechanism would be such that the ECHR and the Court of Human Rights would be supreme over the European Court of Justice in this area.
I have some concerns about human rights principles, but that is not one of them. I hope to develop that argument later in my speech.
At present, human rights are subject to monitoring by the Council of Europe, United Nations treaty bodies, non-governmental organisations and national institutions such as my own Committee, the Joint Committee on Human Rights. There is a need, however, to translate that monitoring into remedial action, if it is required, within the EU framework. The agency could fulfil that responsibility.
In respect of the potential conflict between the two jurisdictions, the hon. Gentleman might recall that the July 2007 White Paper states:
“There are complex legal issues involved in EU accession to the ECHR. These problems would have to be resolved before the Government could support it.”
We have no evidence that those matters have been resolved.
I will be coming to the question of accession later in my speech.
At the moment, I am talking about the Fundamental Rights Agency, which has an obligation to complement the Council of Europe so as to avoid duplication. The Council of Europe’s responsibility is to set the standards for human rights—such as those that we see in the convention—to monitor compliance with those standards and to provide a judicial function through the European Court. On the other hand, the European Union has a legislative function and a political function and much better enforcement capabilities. It seems to me, therefore, that the agency’s job should be to develop recommendations from the Council of Europe and to implement them in such a way as to ensure that standards are met at EU level. I am pleased that a memorandum of understanding was signed by the EU and the Council of Europe in May last year.
I have some doubts about the independence of the FRA, however, and whether it complies with the Paris principles. According to those principles, it should be independent, but, given the way in which the regulations that drew it up were framed, I doubt whether they fully comply with those requirements. Its work is to gather information, analysis and reports and to take an advisory role. It does not have investigative powers or powers of scrutiny, which is a problem. That is a major gap in the agency’s work.
Scrutiny is not among the activities set out in article 5. The lack of scrutiny of EU legislation for compliance with human rights is one of the big gaps. That process is pretty well missing. I believe that the European Scrutiny Committee made a recommendation about this, as did the Committee in the Lords in 2006. I suppose I am advocating something similar to part of the role of my own Committee, which scrutinises domestic legislation for its compliance with human rights standards. It is said that the Commission’s job is to ensure compliance, but that raises the issue of who monitors the Commission’s work, a point raised by the hon. Member for Beaconsfield (Mr. Grieve). Realistically, that should be the role of the Fundamental Rights Agency, although it does not yet have it. Nor, I suspect, does it have the relevant expertise. It does not have the indispensable legal advisers that my Committee has, nor a partner equivalent to ours—the Ministry of Justice—that has an overarching responsibility to ensure compliance and to co-ordinate across government. Ultimately, that should be part of the presidency’s job.
Human rights scrutiny should be done at the earliest possible stage of European legislation—long before it reaches member state Parliaments, where any such scrutiny will be cursory at most. My Committee does not have the resources to scrutinise European legislation properly for the purposes of human rights; as it stands, we are pretty stretched doing our domestic job. That important aspect should be addressed.
As I mentioned, the Fundamental Rights Agency is a first-pillar organisation, although originally it was intended to be a third-pillar one. The Lisbon treaty, of course, abolishes all references to pillars, but regulations for the agency remain first-pillar arrangements, although under article 31 there are provisions for review. It seems to me that in practice it would be impossible for the agency to do its job effectively if it were simply a first-pillar organisation. For example, to monitor and scrutinise effective action against people trafficking involves the full range of the three former pillars: not only European institutions, but police, justice and crime—and, I suppose, foreign affairs, given the issue of source countries. If we are to enforce on the issue of people trafficking, we need to recognise that.
The work programme of the Fundamental Rights Agency is interesting. Many British universities have also been involved in its work. The survey on discrimination against and victimisation of migrants is similar to the British crime survey. I am pleased to see that my old university, Warwick law school, is working on good practice in ethnic profiling by police and border forces, and I am sure it will produce an excellent report. As a result, there is analysis of how migrants are treated by the media. I wish the school luck on that; my Committee did some work on that issue and found it difficult.
Edinburgh and Glasgow universities are supporting work on pathways to violent radicalisation, although I think it potentially rather simplistic. There is also work on homophobia and the protection of children’s rights in the light of the new rights in the treaty—objective indicators are being considered to measure progress in that respect. There is also holocaust education, on which we have a good record.
Earlier, the issue of EU accession to the European convention on human rights arose. It arose because of a 1994 European Court of Justice decision that the European Union could not accede. The Lisbon treaty, of course, provides for that mechanism. The real problem at the moment is getting the Council of Europe to agree—that requires unanimity on its part. All the countries involved have now ratified, save Russia, which I hope will get around to doing so before too long.
The risk of the European Court of Justice and the European Court of Human Rights developing divergent views on similar issues has been raised. It is important to recognise that those who advocate that line accept, effectively, that the charter and the European convention effectively deal with the same sort of issues—otherwise, the risk would not even be discussed. The answer is to look at the position of the ECJ as an EU institution. If the EU accedes to the European convention, it does so with all its institutions, including the ECJ. Effectively, therefore, the ECJ itself, as an EU institution, would become subordinate to the convention and the rulings of the ECHR. It would have to comply with views expressed by the European Court of Human Rights as arbiter of the convention. The circle is easily and properly squared by simply looking at the status of the different institutions that would follow from that.
I am pleased that the charter incorporates children’s rights into the treaty under chapter III, which covers equality. It is a pity that that will not apply in the UK, because that might help us to deal with the reservation that the UK has expressed about the convention on the rights of the child in relation to immigration matters, which is now under review by the Government. I hope that we do not have to rely on the charter to resolve that.
Several issues arise in relation to the protocol. Nothing in the charter creates new justiciable rights, partly because of subsidiarity and partly because the solidarity heads are not rights as such but are more by way of principles. Even if they were rights, it is possible in the long term that the ECJ might make them enforceable. The protocol therefore becomes belt-and-braces protection. Having looked at the terms of the charter, that does not particularly worry me. The charter is an excellent document that sets out a whole series of excellent rights. It should inform our own future debates on a British Bill of Rights, which would, I hope, include most of the things that are set out in the charter, including the social, political and economic rights. That would be a huge step forward for our society and our democracy. I rather regret the reservation of the UK’s position on the protocol. This is a very progressive document. We have nothing to fear from it and there would be an awful lot to be gained if it applied in the UK.
It is always a pleasure to follow the hon. Member for Hendon (Mr. Dismore), especially when it is not a Friday. He speaks with great authority on these matters, and the Committee that he chairs does an awful lot of good work. He talked about the agency for fundamental rights and the fact that we are not absolutely clear how it is going to develop. I share his concerns. It will have an important role, but we need to be clearer how it will operate and how it will check the Commission. I hope that the Under-Secretary of State for Justice, the hon. Member for Lewisham, East (Bridget Prentice), will respond to the hon. Gentleman’s comments.
I want first to set the scene for the positive role played in the development of human rights by Europe and by Britain. As the Lord Chancellor said, we should be very proud of that, and it is worth reflecting on. I also want to argue that there is nothing new of substance in the charter of fundamental rights—certainly nothing to be scared of—and to deal with remarks made particularly by Conservative Members in that regard. I then want to argue that the charter has a useful role and underlying purpose.
The hon. Gentleman has a gift for missing the point, and he has demonstrated it again. The assertion that scientific research must be free of constraint is in the charter, and it is entirely unconditional. Those of us interested in matters such as animal welfare and animal rights believe, contrary to that assertion, that Parliament should set limits to scientific research and that that should be debated and decided in a democratic Chamber according to the preferences of our constituents, not exported to a Court over which we have no control. That has nothing to with the hon. Gentleman’s remark.
The question is one of process and how we establish the restrictions if there are to be any. We believe that they should be decided in this House. We are debating legislation in this area in Parliament at the moment, in the other place. I do not see the right hon. Gentleman’s concern.
The hon. Gentleman started by echoing the Lord Chancellor’s rather facile attack when he asked, “Which of these rights do you not like?” He was then forced, within about 35 seconds, to admit that it is all a matter of process. Perhaps we could now have a debate about process and whether the processes envisaged by the charter are sensible ones for this country to adopt.
No, I would like to make some progress. I shall give way to the hon. Gentleman later.
I believe that this country has a proud record in pushing for human rights, and I believe that the European Union has played a superb role in pushing for them in other countries. In the early part of the debate, people were saying that it is important that British citizens have their rights protected when they go to other EU member states. I also think, however, that the people of Britain would like to see higher standards of human rights and civil rights in other EU countries.
One of the great dynamics behind the accession of other countries to the Union is that they are forced to raise their standards of human rights. We saw that in Romania, in particular. A decade ago, Members of this House were concerned about the way in which orphans were treated in Romania, and because of its desire to join the European Union, standards of child care, particularly for orphans, were raised massively in that country. That is surely something we all welcome. It is just one example of the many practical things that have happened because the European Union has said, “If you want to join the club, you have to meet our high standards of human rights.”
I will give way to the hon. Gentleman later.
I also think that my previous point applies to democracy. The whole point of the European Union is that it has forced people to accede to the democratic values that we share, and as the hon. Member for Wolverhampton, South-West (Rob Marris) said from a sedentary position, that is a very important development for the long-term peace of the world.
Human rights in the EU have been a major dynamic for good, but that is not to say that we can be complacent. One only has to read the reports of Amnesty International or Human Rights Watch, not just about such countries as Bulgaria or Romania, but even about this country, to learn that those who are watching EU Governments are noticing infringements of human rights. In such countries as Poland, we are seeing relatively extreme breaches of human rights. The 2007 Amnesty report states that in Poland:
“Lesbian, gay, bisexual…people were subjected to discrimination and intolerance.”
It refers to the problems faced by Romany people in Bulgaria, and with regard to Romania:
“The Council of Europe and the European Parliament expressed concern at Romania’s lack of willingness to engage in a thorough investigation into allegations of collusion with the US-led programme of renditions and secret detention centres.”
The Amnesty report says that even in the United Kingdom
“the government continued to erode fundamental human rights”—
a point that we have made continually. It is true that that the European Union has been a force for good in this area, but we cannot be complacent. That is why these debates are important, why the charter is important and why we should work with colleagues throughout the EU to go further in this area.
What extra dimension does the Lisbon treaty give human rights? It does not take us very far. Most of the big leaps in human rights occurred some time ago. Before Britain acceded to the European Union, the European Court of Justice dealt with protecting fundamental rights. That formed the basis of the principles of law that governed its rulings. Perhaps more significant is the way in which protecting human rights was developed by treaties, to which former Conservative Governments signed up. Conservative Members will have to answer that point.
It is interesting that the preamble to the Single European Act expressed the determination of European Community member states
“to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice.”
In other words, the debate has been going on for a long time and parties throughout the House signed up to such protections. Article F of the Maastricht treaty states:
“The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms.”
The background to our debate is therefore long established and was previously bipartisan. It is a shame that the Conservative party seems to be moving away from a commitment to those important human rights.
It could be argued that such bipartisanship as existed finished in about 1996 or 1997, when the Conservative Government, to their shame, would not sign up to the social chapter or allow workers in this country a statutory right to paid holidays and so on. The Conservative party, to its credit, has held a fairly consistent position since 1996 or 1997 of not wishing to extend human rights. It is the wrong position but it is consistent.
Perhaps the hon. Gentleman will answer a question about Liberal Democrat policy. If there were an opportunity to do so, would Liberal Democrats withdraw from the protocol and give the European Court of Justice and the charter full effect in the United Kingdom, free from the purported restrictions of the protocol? Yes or no will do.
There is a case for what the hon. Gentleman says. The protocol does not do much. I shall argue that in due course. Lawyers to whom I have spoken say that it is a padlock on belt and braces. In other words, it is otiose. For those who have been worried—whether the CBI, those from the trade union movement or hon. Members—it may serve a purpose, but I hope that I will convince others that the protocol is an unnecessary padlock because we already have other safeguards.
When one examines the charter, some of the paranoid concerns quickly disappear. The charter records existing rights. When one reads the explanations, one finds their sources. It applies primarily to EU institutions. Conservative Members should welcome the fact that the EU institutions will be restrained and restricted and have to adhere to rights. If they believe in limited government and restricting the abuse of power, they should support that.
Some hon. Members have asked what the point of the charter is, if it does not contain much and simply assembles existing rights. The Lord Chancellor answered that question when he spoke of rights being more visible. We in this country and this House might think, “Well, we know those rights—we’ve debated them for decades.” However, there are citizens in some member states and in countries that hope to join for whom such rights are strange and new, and would be welcome. Having a charter that brings those rights together, so that they can be put up in lights to say, “If you join the European Union, these are the sorts of the benefits that you can enjoy,” is a good thing.
I think that has already happened, so I am rather surprised by the hon. Gentleman’s intervention.
If one then wants to argue about the impact of the charter—I do not believe that it introduces any rights, as I have said—or one is concerned about whether there are enough safeguards and protections, one has only to read the text in the surrounding documents. The preamble to the charter is specific and clear about the ambitions in the charter being deliberately limited. If one is still worried, one should look at the treaty of Lisbon. I quoted the second paragraph of article 6.1, which is absolutely clear, in an intervention on the hon. Member for Aylesbury (Mr. Lidington), but he gave no answer. One can then look at article 51.2, in chapter VII of the charter of fundamental rights, which could not be clearer:
“This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.”
Again and again, in all the documentation, the fears that are sometimes put forward are dealt with.
I have heard a great deal this afternoon about there being no new rights. Citizenship of the Union currently complements national citizenship, which has enormous implications for the charter, but the new arrangements are that citizenship of the Union shall be “in addition” to national citizenship. Those are two completely different matters, which have enormous implications for how we are to be treated under the European Court of Justice.
I look forward to hearing the hon. Gentleman explaining the massively significant difference in his speech, because it passes my understanding.
After all the protections that I have outlined comes the protocol, which is legally binding, which, as we have heard, could not clearer. People who are scaremongering about the impact of the charter should therefore go back to the text and see the protections that are there.
Does the hon. Gentleman not accept that the charter has already had a role in interpreting European law in this country recently? For example, BECTU—the Broadcasting Entertainment Cinematograph and Theatre Union—used it in recent litigation, while the Advocate-General referred to it when he granted holiday rights to those with less than 13 weeks’ service.
Of course people will refer to the document, but then they are forced to explain the underlying sources of the rights contained within it. People can refer either to the charter, which is an easy reference document, or to the actual source—they can take their pick. However, before the charter becomes legally binding, they can still refer to the underlying directive, national law or provision in the European convention on human rights so, again, I do not see a problem.
We should be proud of the role that Britain has played in the development of human rights in Europe and across the world. We should continue to push the EU hard to develop its role on human rights. We should not gainsay the progress that has been made, but keep arguing. My only concern about the Government’s position is that it is sometimes too defensive. I think there is a great story to tell about the EU’s role in human rights, and I hope that the Government will join us in telling it loud and clear.
Although the debate has been fairly wide-ranging, one issue that I do not think we have covered in the necessary detail is the place of working people in Europe. The Lord Chancellor devoted about five minutes of his 45-minute speech to it, and there has been only fragmentary mention of working people in the context of the rights that they can enjoy, but the issue is tremendously important. Europe cannot be a construct of the bureaucrats, no matter how much Peter Mandelson and others like him wish that it were. Unless it puts down roots among the people of Europe, as an institution it has no future.
I am interested in the drift of policy dictating the treatment of workers throughout Europe. It could be said that in the 1960s, 1970s and 1980s a strong dose of Keynsian politics informed EU policy, but in my opinion and that of other Labour Back Benchers—there may be only a few of us, but that does not mean we are wrong—there is no doubt that the EU is increasingly taking a neo-liberal direction. In that connection, I want to refer to two important recent rulings from the European Court of Justice: the Laval case—nothing to do with the Vichy traitor—and the Viking Line case. I shall deal with them in some detail. At least they will then be on the record, and can form part of the debate about whether trade union rights in Europe have been undermined or are becoming stronger.
Not at this stage.
Viking Line is a Finnish ferry company. In 2003, it decided to re-flag its vessel the Rosella in order to register it in Estonia and employ an Estonian crew on Estonian pay and conditions, thus cutting its wage costs by 60 per cent. The Finnish shipping union appealed to the International Transport Workers Federation in London, which sent a circular to all affiliates telling them not to enter into negotiations with Viking. The shipping union called for Viking to maintain existing pay and conditions, and then threatened to strike.
Once Estonia joined the EU in 2004, Viking sued the ITWF in the High Court for restricting its “freedom of establishment”. The case was referred to the European Court of Justice, which ruled that in future any strike action affecting that freedom would have to meet stringent legal tests that the Court itself could assess. At that point, a danger light went on.
Although the Court did not, on the face of it, rule against the employer, I would argue that the ruling is excellent news for corporate lawyers in the long term. They will be able to threaten trade unions with long and expensive court cases in order to discourage the unions—which do not possess the same resources as big business—from taking collective action against outsourcing or similar corporate behaviour. It also has very alarming implications for basic trade union rights and freedoms. Our right to industrial action has always come from the democratic mandate of the union through its members, according to laws determined by this Parliament. Now it will also need to meet criteria imposed and assessed by unelected European judges.
Even more serious is the Laval judgment. Although most Members will know exactly what I am talking about, one or two will not, so I shall help them out. Laval is a Latvian company which, in 2004, posted workers from Latvia to work on building sites in Sweden, including the now infamous site at Vaxholm. The Swedish construction union asked the company to agree to the existing collective agreement in the building sector. It refused, instead operating under a Latvian agreement with lower pay scales that undercut the Swedish workers’ wages. The Swedish union quite correctly went on strike, and as a consequence Laval's Swedish subsidiary went bust.
Laval then sued the union for its losses and the case was referred to the European Court of Justice. The Court ruled that the company’s freedom to provide services in any member state should not be restricted by having to comply with a non-statutory collective bargaining agreement. In a particularly alarming section of the judgment, the Court argued that, because the EU posted workers directive set out minimum rights, it was unreasonable to force the company to comply with further agreements at local or national level. So instead of EU legislation setting minimum standards of rights at work, we now seem to be in danger of those standards being seen as a maximum.
I think that the clock that is timing my hon. Friend’s speech has been paused. My hon. Friend is making a powerful point, especially on the Viking case. The Laval case would have been solved had there been a national minimum wage, which Sweden does not have; the company coming in would have had to abide by that. I accept the criticisms my hon. Friend is making, but does he accept that last week the ECJ gave a ruling on employees who have to look after handicapped people at home, which could help 6 million people in this country? It has also helped us with getting pensions for steelworkers and with—[Interruption.] I am sorry, but if my hon. Friend cannot take an intervention, I will sit down.
Thank you. I would welcome the chance to debate the matter; I will come to Rotherham, and we might discuss it in a closed meeting of trade unionists and Labour party members.
On the Latvia case, the Court also argued that the Swedish union had to recognise the agreement reached in Latvia. It referred the case back to the Swedish courts. One reason why it did so was that the charter of fundamental rights was not legally binding at that stage. Under the treaty, it becomes so.
I am glad that my right hon. Friend thinks that the argument we are beginning to construct is powerful. The two cases I mention show how the EU has in too many instances become a factor in accelerating a race to the bottom on labour standards across Europe. John Monks is always seen as a big supporter of Europe, but he has said the following in the light of those two cases:
“The court has ruled in effect that the right to strike is not as important as the unimpeded free flow of services and labour. As such, more ‘social dumping’—namely downward pressure on wages from cheaper sources—is now acceptable and is to be encouraged. To trade unionists around Europe it is plain that the EU, which hitherto has generally upheld workers’ rights—in contrast to the US, and sometimes, sadly, the UK—has now taken a neoliberal, anti-trade union turn.”
Coming from John Monks, that is a powerful statement.
My right hon. Friend the Member for Rotherham (Mr. MacShane) mentioned that, where robust legal frameworks are in place, some of this case law can be circumvented. The problem is that in our country these matters are premised on the history of autonomous collective bargaining where the state has minimal legal regulations, so the dangers my hon. Friend has outlined are even more acute for us.
That is an excellent point. These cases show that the EU is moving towards a policy of undermining workers’ terms and conditions. I am sure that other Members will make that case today.
Another aspect of the charter is also of concern to me: that the freedoms of capital seem to have become fundamental rights of the EU. Title II of the charter contains rights such as the freedom to conduct a business, the right to property, freedom of establishment and the freedom to provide services in any member state. Unlike the workers’ rights under title IV, they do not appear to be covered by the provisions of article 1, paragraph 2 of the protocol, which states only that title IV cannot create new rights except in so far as they already exist in UK law. The right to provide services and freedom of establishment, which were the key points in the Laval and Viking cases, are not so restrictive. Article 15, which contains them, does not contain the proviso that they exist only in so far as they are already in law. That is one reason why the unequal status of the different titles in the protocol is of particular concern.
I hope that the Government can reassure us that this is not as significant as it appears to be, because there are concerns that the situation could be made worse still if future EU legislation or Court rulings were to apply those principles even further. For example, the services directive had at its core the principle of freedom of establishment. The directive was intended to liberalise services on free-market principles. In its original form, the directive included areas that we would consider to be public services, such as health. Even more alarmingly, it enshrined the country of origin principle. That principle provided that where services are provided by a company based in a different country, the legislation of the home country would apply, with a few minimal exceptions, such as basic health and safety standards.
Thankfully, those elements were removed from the directive as a result of pressure from some member states and, eventually, a majority in the European Parliament. The Commission has never fully accepted that, and seems to be finding imaginative ways of bringing those elements back, such as in the recent health directive. In that light, I hope that the Minister can reassure me on a few points.
First, is there any danger that by making the freedom of establishment and the right to provide services fundamental EU rights they could become even more powerful tools for big business? Can he assure us that the Court will not give them greater consideration or overrule EU legislation that does not give them sufficient weight? Secondly, will the Minister assure this House that the Government will do their utmost to resist any attempt to revive the country of origin principle or any similar measure?
Several other hon. Members are waiting to take part in this debate, so I shall simply say that if the EU’s direction of travel is increasingly market-oriented and neo-liberal, Ministers may rest assured that many Labour Members will begin to doubt the so-called construct of a social Europe, and that Europe will never engage the hearts and minds of millions of working people across the continent. That needs to be borne in mind as we discuss the European Union’s future.
The hon. Member for Elmet (Colin Burgon) made a thoughtful speech. He pointed out the significance of judge-made law, which is very relevant to some of the points that I would like to share with the House.
This debate is meant to be about human rights, but actually it is not about that, because, despite some of the political arguments that are occasionally used, there is an equal commitment to human rights on both sides of the House, from all Members of Parliament. The issue is how we decide what those human rights should be and how we are accountable to the wider electorate whom we serve both in this country and in the other countries of Europe.
The significance of the protocol that was negotiated by the Government—if it is watertight—is twofold. First, it is important because it is a further step towards the kind of à la carte Europe that I wish to see. I believe that model will enable not only Britain but many European Union countries that have concerns about excessive integration to reconcile their membership of the European Union. The protocol curbing the power of the European Court is important in that respect. Secondly, it is about the wider issue of the European Union’s accountability to the electorate.
Let me comment briefly on both those fundamental issues. If the protocol works, it will curb, for the first time, the European Court’s ability to make law in substantive areas for the United Kingdom. We should realise that this kind of à la carte Europe, which Britain has pioneered, but in which other countries have participated, has several implications. First, it is not designed just for the United Kingdom. Poland has this protocol, and other European countries, such as Sweden, Denmark and a number of other states of that kind, have also opted out in various areas.
The second implication of an à la carte Europe is that it does not just give us the right not to participate in certain kinds of integration; we should also respect the right of other member states that may wish to go further. That right should be equally important. It should not have to be haggled about or negotiated, because it should be implicit in how we operate.
The Schengen agreement, the single currency, the protocol and the justice and home affairs provisions contain opt-outs for some countries, and not only for the United Kingdom. We must also take into account the hugely long transition periods for all the new member states from central and eastern Europe. Even if they want to join the euro, they may have to wait nine or 10 years in order to do so. That is not simply a transition; it means that for a generation there will be a European Union of the kind that we in this House should be much more comfortable about. That is an important point.
The second aspect to this matter is the wider issue of accountability to the electorate in respect of how our laws are made. Most of the dispute in this area in recent years has been not about the Court, but about qualified majority voting—it has been about the ability to take decisions that are not made unanimously. That covers very important issues, because inevitably when a minority of Governments do not vote for a proposition and it nevertheless takes effect in their nation states, there is no way that the electorates of those countries can hold their Governments accountable, because those Governments themselves were opposed to the measure imposed upon them. That is an argument as to why any decision to move to QMV should be taken carefully. I hope that such a move will take place in as few cases as possible.
I come to the issue of the Court, because that is what we are really discussing today. The situation is much more dangerous and disturbing than QMV, because a decision made by the European Court is different from a judgment made by a national court. If a United Kingdom court makes a judgment that embarrasses the Government or leads to a law that Parliament never thought it intended, Parliament has the power, if a sufficient majority exists, to reverse that court’s decision by making new law. The Supreme Court of the United States has enormous power to determine new law and develop the law in a fundamental and often controversial way. If a consensus existed in Congress—it does not always—and the President and Congress agreed that the Supreme Court had created a situation with which they did not want to live, even the United States has it within its own power to reverse that situation, although that rightly involves a complicated and difficult measure.
Dealing with the European Court, rather than our national courts, represents a new situation. There is no way in which the decision of that Court can be reversed in a democratic fashion by those upon whom its judgment has an impact. The United Kingdom cannot reverse such a decision by itself, unless it has an enforceable protocol that can prevent the situation from arising in the first place. If the protocol does not apply, or it acts in other areas, a difficult situation arises. In theory, the only way in which a judgment of the European Court, however controversial, could be overturned would be if the Council of Ministers as a whole decided to reverse it. That would require not just a majority but a decision by all 27 member states, because any one state could veto such a change.
I follow the right hon. and learned Gentleman’s argument. How is this different in any way from the way in which the World Trade Organisation’s adjudication panel imposes its rulings on countries, irrespective of the will of Parliaments and sovereign Governments? Those rulings have to be accepted.
I am grateful to the right hon. Gentleman for that point, because there is a fundamental distinction between the two situations. When one is dealing with the WTO or any international treaty that concerns itself with the relations between states, of course one encounters curbs of the kind that he mentions. We are increasingly seeing the European Union move into domestic law and into the rights of individual citizens in respect of their health, housing, education or personal rights in a way that has no relevance to the WTO situation.
Let us consider the case of genetically modified organisms. The WTO is moving towards insisting that those should be freely traded. For many, although not for me, that has a huge impact on health considerations. Trade cannot be divorced from the health, social and other aspects.
I do not doubt that a choice will have to be made in some areas and that occasionally, with a great lack of enthusiasm, we will have to acknowledge that an international court may need to be the body that makes law that imposes itself on us, as it does on all other countries. The right hon. Gentleman should not get carried away with enthusiasm. I am saying that the onus will be on those who want such a situation to prove that this country’s citizens have an enormous interest in sacrificing their own control over how decisions are made in order to achieve certain objectives. Sometimes that test may be met, but such occasions will rightly be relatively rare. If the European Court is able to reach judgments that cannot be overturned, however controversial, unless there is unanimity in the Council of Ministers, it in effect has the last word and is all powerful. That really is power without responsibility.
The other crucial point that has not been mentioned today is that the European Court’s position with regard to the charter of fundamental rights is quite different from its position until now. Until now its role has been one of interpreting directives and specific pieces of legislation covering relatively narrow areas. The very point of the fundamental charter is that those rights are expressed in very broad terms, and that is exactly how judge-made law can expand in a dynamic fashion. We have seen in the US how the Supreme Court has used provisions that were put in the constitution more than 200 years ago on cruel and unusual punishment to deal with the issue of capital punishment. The right to bear arms is also used to justify the right of Americans to carry guns in the most extraordinary circumstances. Those dramatic developments of law have an impact on ordinary people, and Parliaments and other accountable bodies have not been involved. Just as the US Supreme Court has that power, so the European Court would have a comparable power with the charter of fundamental rights.
The situation is worse than with qualified majority voting because even when we or another Government are outvoted in the Council of Ministers, and have to accept a judgment that we do not like, QMV is normally—although not always—applied at the end of a long negotiation in which compromises are invariably made to assist the minority Government or Governments to live with the outcome. I have taken part in such Council of Ministers discussions as part of both the minority and the majority sides. Strenuous efforts are made to help the Governments who are being outvoted to live with it and sell it to their electorates. It does not always work, but the effort is made. When laws are made by the European Court, there are no negotiations, compromises or attempt to recognise the political realities. The rules are simply pronounced in the judgment and Governments have to like it or lump it.
I accept my right hon. and learned Friend’s argument about the à la carte Europe, although I suspect that his argument is like the curate’s egg. Does he accept that although he is right in his criticisms of the way in which the European Court could function—as the European Scrutiny Committee has made clear—the heart of his argument is wrong, because the only way in which we would be able to ensure that the decisions were taken in the interests of the people whom we represent would be to override the Court, in certain circumstances, by the “notwithstanding” formula in the amendment that I have tabled?
I have never had any problem with endorsing the curate’s egg. It seems to me that the curate was being sensible, if his egg was only good in parts. That is occasionally true of my hon. Friend’s speeches, and he might like to bear that in mind. [Laughter.]
I can understand my hon. Friend’s view on that matter.
It does not matter whether we are Eurosceptics or believers in the European Union, we all believe in the democratic principle. If the European Union is to survive and prosper, it is crucial that power should only be given to institutions that are not directly or even indirectly accountable to the electorate in the rarest possible circumstances and with any constraints that are reasonable and proper in the circumstances.
I am delighted that unlike the constitution, and contrary to the Government’s original strategy, there is a protocol that states that there will not be justiciability of the role of the European Court. The question is whether that is watertight. If the Government had been more competent during the original negotiation, they would have been able to remove the residual doubt by simply saying that the protocol will apply regardless of other treaties and regardless of European law. As my hon. Friend the Member for Aylesbury (Mr. Lidington) said, such constraints apply elsewhere and could have applied here, if the Government had not missed the trick. It would be difficult now that the treaty has been agreed for them to go back and renegotiate it. That means that we will have to be careful in analysing the Government’s arguments to see whether, notwithstanding that omission, the protocol is something of value. If it is, it will not only help the Government and the United Kingdom, but it will be a big step forward in how to relate to the European Union for countries that want to be part of it, as long as it can show the flexibility and diversity necessary for an organisation of 27 and perhaps, one day, more than 30 countries.
The right hon. and learned Member for Kensington and Chelsea (Sir Malcolm Rifkind) made, as always, an eloquent and passionate speech in support of his fundamental view of the protocol insulating the UK from the justiciable effects of the charter. I start from a very different position on the application of the charter of fundamental rights, so I shall not attempt to counter his arguments.
I regard this debate as one of the most important on the treaty, because the charter of fundamental rights, the decisions of the European Court of Justice and the tenor and direction of several EU directives are central to the issue of a social versus neo-liberal Europe, which lies at the heart of the European project.
The charter raises two immediate questions. Although I listened to both Front-Bench speeches, I am still very puzzled about why the Government are so adamantly opposed to the application of those rights in this country, especially as every one of the other 26 member states has accepted them without demur, including both right-wing and left-wing Governments. A pragmatic answer—although I am struggling to find an explanation—might be that the charter would ban excessive working hours. The British worker works more hours a week than anyone else in Europe and the CBI would like to keep it that way. It would also permit secondary action in industrial disputes, but at present British workers cannot take such action, although employers can. No doubt the CBI would like to keep it like that as well. The right to take secondary action has never been an issue in any other country in Europe, although it has had enormous implications in this country.
Does my right hon. Friend accept that the German constitution forbids some 1.5 million to 2 million civil servants and public sector employees from even going on strike? It is the Germans who insisted on many of the safeguards—the so-called lateral or horizontal safeguards—being put into the charter before the protocol question arose, to preserve their ban on strikes, which is far more draconian than anything in the UK.
I agree with my right hon. Friend. I am simply searching for an explanation and it may be that I have hit on the wrong one. I hope that I have, because none of the explanations that I can think of appears to carry much weight. If it is a matter of keeping the CBI sweet, I suggest that that is not the job of a Labour Government. Nor is it the responsibility of a Labour Government to implement what Tony Blair, the former Prime Minister, once commended to a business gathering as
“the most restrictive trade union legislation in the Western world”.
We inherited that from the Conservatives.
It is shameful that we are not proud to welcome the charter of fundamental rights into our own legislation, which every other nation in Europe has taken in its stride as the foundation of a civilised society. I cannot see what the problem is. We have continual discussions about whether it will make a difference, and I am not sure that it would, but I cannot see why we object to implementing it.
It is far from clear whether the charter will affect UK law. The Government allowed the charter to be made legally binding, but then put forward a protocol that, they argue, will prevent the charter from affecting UK law or at least will limit its impact. However, others have queried the status of the protocol. The Swedish Prime Minister said on 26 June last year that the UK had accepted that the charter was legally binding, which is certainly true, and then added:
“It should be stressed that the UK was given a clarification, not an opt-out”.
Significantly, when Tony Blair was presenting the protocol to the UK Parliament on the day before, he misread the text—[Interruption.] Well, I assume he misread it. He said that
“‘nothing in the charter creates justiciable rights applicable to the United Kingdom’”.—[Official Report, 25 June 2007; Vol. 462, c. 21.]
However, the text of the protocol actually says:
“Nothing in Title IV of the Charter creates justiciable rights applicable to the United Kingdom”.
The clear implication is that although one section of the charter cannot be used to create new rights, other sections almost certainly will be. In that respect, I am sympathetic to some of the arguments coming from the Opposition. But even in respect of title IV on social rights, the text of the protocol states explicitly that the charter does not create justiciable rights applicable to the UK—and several people have quoted this—
“except in so far as the UK has provided for such rights in its national law”.
It will presumably be left for the European Court of Justice to decide for itself whether the UK has attempted to provide for such rights in its national law and to decide whether the attempt to provide such rights is adequate in the light of the charter. Indeed, it is very difficult to see how this discrete carve-out, so methodically prepared, can work in practice. Firms operating in one member state will be affected, but if they operate in more than one member state, the charter will clearly apply. Migrants coming from another member state to the UK would presumably still be covered. Anyone who travelled to another member state from this country—for health services, for example—would presumably be able to use the charter. Moreover, there are 30 years of EU jurisprudence to say that there can be no two-tier system of European rights.
May I draw my right hon. Friend’s attention to Tony Blair’s speech to the CBI in November 2003, in which he explicitly said:
“On issues like…agency workers, Europe must think first and foremost about jobs and competition”—
namely, free markets? Is it not clear that the former Prime Minister gave primacy to competition over social protections?
I very much agree with what my hon. Friend says, and I am sure that he will pursue it at greater length later in the debate.
What I find most sad and perverse about this whole sorry saga is that, over time, this claimed uniqueness for the UK will almost certainly increasingly unravel. It will be eroded by ECJ judgments, which are quite likely to happen, and also by the interactive knock-on effects between title IV and the other parts of the protocol. It seems to me tragic that the Government are investing such enormous legal and logistical resources in resisting something on which they are all too likely to lose in the end, yet which every other country in Europe has decided is practical and desirable. I simply do not understand why the Government have got themselves into that position unless it is fear of the Eurosceptic press. That is the only other consideration that I can think of, but I hope that that is not the case.
For any Labour Government, enforcing a justiciable charter of fundamental rights should be integral to securing a social Europe to counter the neo-liberal orientations of the EU treaties. That is starkly illustrated by the Viking and Vaxholm cases, which were mentioned earlier. Two months ago, the Swedish and Finnish unions sought to prevent companies from massively undercutting pay rates by paying foreign workers up to 60 per cent. lower wage rates. However, the ruling was—this makes it so interesting and important—that although there was a fundamental right to take collective industrial action, such action represents a restriction on the employer’s right of freedom of establishment. Of course, industrial action by its very nature will be an obstacle on the activities and freedom of the company. In other words, an employer’s right to freedom of establishment trumps the union’s right to strike. That is worryingly reminiscent, if I may say so, of the infamous judgment in the Taff Vale case of 1901. The Taff Vale railway took the Amalgamated Society of Railway Servants to court for having the audacity to go on strike. The crime was known then as being “in restraint of trade”. Perhaps all that has changed is the terminology, because we are now talking about exactly the same point but it is now called freedom of establishment.
Nor is that an isolated example of the neo-liberal propensities within the EU treaties. The Lisbon treaty adopted the curious word—I had never heard it before—“flexicurity” to give the wholly false impression that if workers embrace flexibility, job security will automatically follow. Some of us might regard that as a contradiction in terms.
“Flexicurity” was developed by the Danish social democratic Landsorganisation. It is a term used in the Nordic countries to describe the combination of job security protection and flexible labour markets, which has allowed Sweden and Denmark to grow. It is a wholly social democratic and progressive concept—not a neo-liberal idea at all.
It is always helpful to have an exegetist of such immense academic knowledge as my right hon. Friend and I bow to his superior knowledge. However, whether he likes it or not, I still think that the term has neo-liberal implications—irrespective of whether it started out like that. The treaty also demands the abolition of what are called
“overtly protective terms and conditions”—
a highly subjective notion, of course—in contracts that supposedly
“deter employers from hiring during economic upturns”.
Despite all the spin about flexicurity—I entirely absolve my right hon. Friend of any accusation of using spin—the detailed language in some parts of the treaty suggests, unless it is balanced by a robust and effective charter of rights, a slippery slope on which it would be easy to slide back to the sort of casualisation and insecurity that we saw in previous decades in this country. That is my central point and bottom line in the debate.
That is all too clearly revealed, to provide one further example, in an EU green paper promoting flexicurity, which says that contractor obligations to monitor employment law among sub-contractors
“may serve to restrain sub-contracting by foreign firms and present an obstacle to the free provision of services in the internal market”.
That just about says it all. The direction of travel is unmistakable.
For a final example, under article III-147 of the old constitution, which remains under the reform treaty, the EU would be given power to enforce privatisation in any area of economic activity:
“A European framework law shall establish the measures in order to achieve the liberalisation of a specific service”.
We have already seen that in action with the EU services directive, which was seeking to extend the private sector into all areas of public service, but at least health care was left out on that occasion. However, a draft EU health services directive was adopted at the end of last year by the European Commission and was designed to create a market in health care.
I conclude that this abundant evidence of the neo-liberal underpinning of the EU treaties is the overwhelming reason why we need a balance to secure a social Europe, not just a market Europe, and why a charter for fundamental human rights is crucial to achieve that balance.
It is a pleasure to follow the right hon. Member for Oldham, West and Royton (Mr. Meacher). He made an important speech that exemplified the extent to which rights, or at least some rights, are essentially political and economic in their origin and their importance. It should therefore perhaps be political and economic matters that lead to their definition and implementation.
All parties and all Members in this House are in favour of basic human rights—what we normally mean by human rights, which do not extend into the sphere of certain economic rights. All parties have always supported human rights, yet successive Governments have opposed the implementation into treaty law of a charter of human rights. Why is that? Why have successive UK Governments, including this one, opposed the implementation at a European level of a justiciable charter of human rights?
The matter would be clearer if the Government would do as I asked in my point of order at the start of the debate. For the convenience of the debate, they should table information about the positions that they took during the negotiations on the European constitutional treaty and the European Convention. Only then will we be able to see clearly what is from time to time referred to by those who are more knowledgeable than the rest of us—notably my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory), who participated in that Convention. I hope that either now or when she sums up, the Under-Secretary of State for Justice, the hon. Member for Lewisham, East (Bridget Prentice), will promise that in future, each day, alongside all the other documents that are supplied to inform our debates, we will have on the Table the resolutions that the Government moved and the terms in which they moved them during the Convention, so that we will know what the Government’s position is or was.
Is the right hon. Gentleman aware that during the negotiations on the constitutional treaty—the one that the French and Dutch killed off—the Government set up a Special Standing Committee of both Houses of Parliament and invited every right hon. and hon. Member and peer to attend to hear from negotiating Ministers what was being said? Not a single Member from the right hon. Gentleman’s Front Bench turned up to one of those meetings.
I am not certain that that is true. I turned up to those meetings frequently. They were meant primarily not to allow Ministers to report back but to allow the Members of this House who were sent to the Convention to report back, as they did. Both my right hon. Friend the Member for Wells and the hon. Member for Birmingham, Edgbaston (Ms Stuart) reached the conclusion that the constitution was not in the interests of the House, and that constitution was fundamentally the same as the treaty that is before us now. The right hon. Gentleman has scored an own goal by referring back to that Committee.
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.
My right hon. Friend is making an extremely effective point. I remind him that the situation will get worse under the treaty. Under article 9, paragraph 2, the ECJ will have to practise mutual sincere co-operation with the other EU institutions, which exclude member states. Any bias that he detects will be redoubled if the treaty is ever ratified.
My right hon. Friend makes an extremely good point that explains why we should look very carefully at what is happening and why, in the laughably short one and a half hours that we have to consider the amendments this evening, we should take every opportunity to amend the Bill. In that way we can try, to the extent that it is in our power, to prevent the greater dangers that lie ahead.
The other aspect of leaving the balancing and explication of different rights to the Court rather than to the parliamentary process is that we cannot amend decisions when circumstances change or if we find that they are not what we wanted or what our constituents feel to be fundamentally fair, reasonable and right. The fact that we cannot amend them means, in turn, that we cannot take risks with them.
Those hon. Members who have expressed concern about economic rights should know that I would feel far more confident about granting economic rights to workers, say, if I knew that they could be withdrawn if they did not work out to their advantage. For example, I might fear that a change might turn out to price people out of a job rather than increase their well-being. If I knew that it could be revised, I should be much more willing to be generous about trying it out in the first place. Therefore, we have a choice: we can either throw caution to the winds, leave all decisions to the ECJ and hope that everything turns out all right, or we have to be terribly cautious about granting specific economic and other rights, for fear that we cannot change them if they work out badly. Whatever one’s position in these matters—whether one sides with the Labour Members who have spoken in the debate or with the neo-liberals to whom they have referred and of whom I assume that I am one—I urge the House to say, “Yes, we believe in rights, but ultimately they should be defended, protected, developed and evolved by the parliamentary process and not by a foreign jurisdiction over which we have no control and to which there is no recourse.”
It is a pleasure to follow the right hon. Member for Hitchin and Harpenden (Mr. Lilley), who made some telling points. I entirely accept that this House should have primacy wherever possible, but the backdrop to the debate is that our economy has escaped our national boundaries. Parliament no longer controls it, and there is no longer coterminosity between how an economy works and the nation state. That is why, as I mentioned in my contribution last week, I believe that there has to be some sort of supranational collaboration on economic matters.
However, I fear that an open and free internal market in goods, labour and capital will have consequences for social cohesion, and I want to set out the problems that can arise. The requirements of the internal market in the EU mean that labour should be able to move around the continent freely, in the same way as both capital and goods and services. That is fine, provided that there are appropriate and adequate social protections to prevent the breakdown of community cohesion, which I fear is the corollary of having a free market in labour.
Yet it seems that the Government are allowing that breakdown to happen, which is why I want to return to the problematic and anomalous title IV in the charter of fundamental rights. The protocol makes the extraordinary statement that title IV, alone of all the other titles, will give rise to no additional justiciable rights in the UK. Why is that qualification attached only to title IV and not to any of the others? For an answer to that, we need to reflect a little on the history of that red line.
I did some research on the internet earlier today, and found the item that appeared on the BBC site at 10 minutes to 1 in the morning on the Saturday of last June’s Brussels summit. The item states:
“Britain’s ‘red lines’ are guarantees that the Charter of Fundamental Rights, which could give workers extra rights to strike, will not apply to the UK.”
It was clear that Tony Blair regarded what can only be called an opt-out as a major achievement in the negotiations. In his speech to the CBI to which I referred a few moments ago he said:
“We will not allow the Charter of Fundamental Rights to open up interference with Britain’s labour laws and will not agree the new Constitution until we are sure that they are safeguarded.”
The CBI said of the fundamental human rights contained in the charter:
“The most notable of these from an industry perspective are the rights”
that the charter
“would confer on issues such as collective bargaining and the right to strike—both of which are already covered by the UK’s extensive employment legislation. These, if conferred, could have an adverse impact and threaten the flexibility of the UK’s labour market which is crucial to our continued economic success.”
Does my hon. Friend agree that the former Prime Minister probably had little to fear from the interpretation provided by the ECJ, given that institution’s previous judgments? It has made it clear that it will not allow any European provision to override British industrial relations law, but that it will interpret laws and rights that come from Europe in accordance with our domestic approach.
I should like to explore that point in a moment, as ECJ rulings tend to be complex and we need to understand them better.
The CBI said that title IV would threaten Britain’s flexible labour market, but there is an interaction between the legal processes involved and the socio-economic processes that run alongside them. I shall give three examples of the problems that can arise. Although they come from my constituency, I am sure that other hon. Members will recognise them from their own.
The first involves a company that employed what might be called indigenous workers—people who had lived in the area all their lives. They were due to acquire additional labour rights after a year’s employment, but as the deadline of 11 months, three weeks and six days approached, they were sacked. Within eight days, they were replaced: exactly the same number of employees were put into the same jobs, having been imported from Poland on agency labour contracts.
The second example involves a company that had an agency labour stand inside its factory. Two years ago, Parliament raised the minimum wage by 30p an hour, and the company immediately told its agency work force that it would accept that increase but that it would reduce the bonuses to which workers were entitled—and which were paid at a rate of £1 an hour—by precisely the same amount.
The third example from my constituency involves one of the largest firms in the UK. It is a big employer in my area, and it takes on huge numbers of migrant labourers. I assure the House that I attach no responsibility to those workers, as they are unfortunate people who are being dragged across the continent by profiteers. However, the company decided to do away with overtime payments. On new year’s day 2008, it changed its shift patterns to avoid paying the workers double pay.
Those are the kind of actions taken in the much-vaunted flexible labour market that the CBI and our right hon. Friend Tony Blair had in mind when he decided to tackle title IV, which gives workers the right to collective bargaining and to take action in cases of conflict with management. We have heard on a number of occasions that title IV will give rise to no further justiciable rights in the United Kingdom, so we are entitled to ask the Government why on earth we are not having a proper debate in Government time about those labour market issues, which are of great concern in the labour movement. Why are we dealing with them in this debate? Why do promises made to me privately appear to have been dishonoured? It is not acceptable that we have to address such matters in this way.
Will the Government explain why they have put a double lock-out on title IV—“Solidarity”—which deals with those matters? Why are they allowing other rights and freedoms under the fundamental charter and not subjecting them to the same lock-out? It seems to me that the treaty deals with rights attached to collective bargaining and collective action that the Government have decided to put at arm’s length and shove away from us, but other rights, such as the right of companies to establish themselves anywhere in the UK and to provide services anywhere in Europe, are not subject to the same lock-out. The position is anomalous and creates asymmetry; on the one hand, capital has rights to provide goods and services and to move across the continent, yet on the other hand there is a lock-down on the rights of workers to organise collectively should they be faced with oppressive management.
That leads to the point about the ECJ that my hon. Friend the Member for North Ayrshire and Arran (Ms Clark) raised a few moments ago. The Court is apparently inhabited by a neo-liberal culture that attempts to give primacy to the needs of the free market and the internal market, with the open movement of labour, goods, services and capital, at the expense of collective bargaining rights. We have already heard reference to the Viking and Laval cases. I shall not go into them again, save to note that a contract made between an employer and an employee in Latvia now appears to have legal validity in the UK—this also applies elsewhere—should the company decide to bring Latvian workers to the UK. In considering the two cases in general terms, it appears to me that there is a series of rights, responsibilities and freedoms under the charter and that the Court—a non-political body—will be left to arbitrate between them. The Court will make political judgments in each case about which rights or freedoms should have priority. In the Viking and Laval cases, it is clear that the decisions taken by the Court gave primacy to the right of a company to establish itself and to provide services anywhere in the EU at the expense of the right to collective bargaining and collective action.
Arguably, other case law in the ECJ and in the UK may contest the decisions in those two cases, but the opt-out on title IV, and the particular phrase in question, seems to give a clear nudge and wink to the ECJ that it is right to interpret the hierarchy of rights and responsibilities as it has so far, and that in the minds of at least the British and Polish Governments, it is right to give primacy to the rights of companies to trade, sometimes oppressively in relation to their work force, rather than to the right of workers to take collective action. I think the ECJ will regard that wording as more than a nod and a wink to say that it should continue making decisions such as those in the Viking and Laval cases and in others.
In the absence of the proper debate I feel I was promised, I must press the Minister to address those specific points to give us some reassurance. A large number of Labour Members are concerned and every trade union in the country has endorsed the questions we are trying to ask. Without a satisfactory explanation, I fear that there is only one conclusion: the British Government, for whatever reason, have decided that the asymmetrical relationship between labour and capital that I described should continue, and that that asymmetry should work at the expense of labour and in favour of the interests of capital.
On a point of order, Madam Deputy Speaker. I seek your guidance about ensuring that information given to the House by Ministers is accurate.
Yesterday, at column 660 of Hansard, the Secretary of State for Justice said in his statement on the reported bugging of the meeting between the hon. Member for Tooting (Mr. Khan) and Babar Ahmad that he was made aware of the burden of the allegations on Saturday. In the last hour we have learned that the Justice Secretary had a meeting in his Department to discuss press inquiries about the meeting between the hon. Member for Tooting and Babar Ahmad last December. Given that we know that officials in the Department knew about the bugging allegations last December, are we really to believe that they did not mention them to the Justice Secretary, and how can we ensure that he comes to the House to set the matter straight?
I understand the right hon. Lady’s point of order, but she will appreciate that it is not a point of order for the Chair. However, her concerns will have been heard by Members on the Treasury Bench and her comments will be on the record.
I am mindful of the pressure on time for Members who want to contribute to the debate. I call Mr. Heathcoat-Amory.
My right hon. Friend the Member for Maidenhead (Mrs. May), the shadow Leader of the House, has just given us a good illustration of how it is to the House that we look to defend our rights, not to any court—still less a foreign court.
The hon. Member for Hemsworth (Jon Trickett) asked many extremely good questions about the extent to which social and employment rights will be enhanced, undermined or degraded by the operation of the charter and its associated protocol. No one in the House can give him an answer; we just do not know. All we know is that those rights will progressively cease to be a matter of contest between elected politicians but will be handed over to another jurisdiction and another court, which we do not control. That is why the debate is important.
The charter will cease to be a declaration and will become a fully binding document and because it will be part of the treaty, in full, it will be superior to national law. That is asserted in the treaty. We are thus making an extraordinarily important transfer of powers and authority in the treaty.
Yes, I can confirm that. If my hon. Friend glances at article 6 of the treaty he will see that the charter is incorporated in full as a fully binding legal document. It attains exactly the same status as the treaty and all EU law. That is a very important point.
This is an unhappy outcome for the Government; all the way through the Convention on the Future of Europe they tried to prevent it. They tabled amendments, which were not successful, and there was a sorry series of retreats from assertions made, and indeed from promises given to the House, about the status of the charter—that it would never be legally binding—to giving in and now trying to make the best of a bad job. Of course, the Government had a veto over the whole process. They should have made their red lines clear at the start of the negotiations, rather than come up with self-selected red lines at the end to try to show that our rights and powers had been protected.
No one has answered the question, “Why do we need the charter?” The European convention on human rights is much older, dating back to 1950, and it is already embedded in the EU, which is required to give effect to its general principles. That is in article 6 of the treaty on European Union. Of course, all member states are signed up to the ECHR. It has not been explained why we need a separate, overlapping charter, with its own case law to create more confusion. In my view, it is part of the EU’s determination always to have a monopoly on legal rights and legal order. It is contemptuous and suspicious of any other organisation, whether legal, social or political, that might be a competitor.
On the remarkable story of whether the charter contains new rights, I intervened on the Secretary of State for Justice to point out that the Government’s often repeated claim that there are no new rights is simply and flatly untrue. Just to remind the House, article 13 of the charter says that
“scientific research shall be free of constraint.”
The explanatory notes confirm that that right is not recorded in any other document to which we are a party. That is a new right. When I was criticised on that point by the hon. Member for Kingston and Surbiton (Mr. Davey), I pointed out to him that I opposed the right because I believe that Parliament should restrain scientific research from time to time, in the interests of animal welfare and so on. He then said that he, too, was in favour of such matters being decided in Parliament, so he contradicted himself in the space of 15 seconds. Perhaps it is no surprise that he does not understand the issue.
If the hon. Gentleman will forgive me, I am short of time and cannot take too many interventions. We debated the matter to exhaustion. He could conclude only, rather lamely, that the House should decide such matters, but the whole point about the charter is that we will not decide. We are talking about a bald, unconditional right in the charter, derived from no other document, which takes decision making on those subjects away from the House. It is a matter of democracy, and if the hon. Gentleman refers to Hansard, he will see just how foolish his defence was.
There is also the remarkable saga of the opt-out claim to consider. The former Prime Minister, Tony Blair, often said that we had an opt-out, which was completely untrue. That was later corrected, but none of the well-paid officials who helped him issued a correction at the time. The fact is that we do not have an opt-out from the protocol. The European Scrutiny Committee shows, certainly to my satisfaction, that the protocol gives no defence against rights finding their way back into UK law indirectly as a result of our overriding obligation to abide by European Union law. That obligation is asserted elsewhere in the treaty that we are considering, and indeed in existing treaties. The European Scrutiny Committee shows that the protocol on which the Government constantly rely is threadbare. It is certainly fatally weakened.
The rights are incredibly general. Human dignity and physical integrity are again supported, and, in general terms, who could be against those concepts? However, they have great relevance to the debate on abortion. Whatever one’s views on abortion, I think that we all agree that decisions on the subject should be made by representative Parliaments. We can contrast that with the situation in the United States, where such issues are a matter for judicial decision. That is one of the reasons why people there shoot doctors and try to blow up abortion clinics. Decisions on whether abortion should be restricted or available on demand are, as a constitutional right, made by the Supreme Court, and cannot be changed by Congress; that would require an amendment to the constitution, which is incredibly difficult and cumbersome to achieve. Removing decision making on that subject from the congressional sphere creates more frustration, and less democracy.
Exactly the same is true of respect for family life and the right to found a family; they sound fine, but they could easily be applied to issues that the House spends a great deal of time debating, such as the rights of asylum seekers and the extent to which they can be reunited with family members in other countries. At present, they generally cannot be so reunited. Would we like it if debates in the House became irrelevant because such issues were decided for us? The same is true of social rights—the so-called chapter IV rights—which are constantly, and rightly, raised by Labour Members. Those issues should be a matter of contest between ourselves. It is quite wrong that a decision about whether they are adjudicated on in the European Court of Justice depends on whether the protocol is strong, weak, or threadbare, or can be relied on.
We know that the European Court of Justice is an activist, interventionist court with its own dynamic. As I pointed out in an intervention, it is not neutral in any dispute between a member state and the European Union institutions. If the treaty is ratified, the ECJ will be required by treaty law to practise mutual sincere co-operation. I would never go to court if I knew that the court had to practise mutual sincere co-operation with my legal opponent, but that is the situation in Europe. If our protocol is under attack from the European Union, the arbitrating court has a duty to co-operate not with the member state but with the Commission, or whatever the European Union constitution involved.
The fact is that human rights are incredibly complex. They often involve conflicts and trade-offs. A balance has to be struck between competing rights, and that should be done here in Parliament. Of course we sign up to overriding international rights to moderate the behaviour of states internationally; that is what the European convention on human rights did, which we signed in 1950.
The charter, however, does something quite different: it drills down into member states’ law-making processes. It will interfere with and replace decisions that we should make here. It is a further massive transfer of power and authority from the House to another jurisdiction, and people know that. They will cease to come and lobby us about their rights—about whether those rights should be extended, or whether the competing rights of, say, employers and employees should be removed or strengthened. They will not bother to do that. They will not vote for us if they know that those essential decisions are not made by us in Parliament. There is evidence that that already happens. There is disillusionment with the political process.
Let us not pretend that the loss of democracy here somehow creates democracy in the European Union, because turnout has declined in every single European Parliament election since 1979. The disillusionment is continent wide. The public are simply losing faith in the ability of elected people to influence decisions and outcomes affecting their lives. Again, in the section of the treaty that we are discussing, we are being invited to transfer more powers from the House. The Government were well aware of that danger, and that is precisely why they fought the proposals all the way through the Convention process. The Convention became the constitution, and when that was turned down, the Government fought the proposals in the new treaty. The safeguards and reassurances given are almost worthless; that is the conclusion of the European Scrutiny Committee’s report. That is why I invite the House to support the amendment this evening.
Like the right hon. Member for Wells (Mr. Heathcoat-Amory), I shall focus on the charter of fundamental rights, pose some questions about how effective the protocol will be and highlight key labour market issues that a number of Members on both sides of the House have raised in the debate.
Four key issues appear to be relevant to a discussion of the labour market elements of the charter. First, to what extent will British workers be denied the opportunity to rely on the charter to interpret and expand existing rights derived from Community law? If British workers are unable to rely on the charter, is it conceivable that EU rights will have a diluted status in the UK? Secondly, to what extent are British workers protected when they take industrial action that an employer claims violates his or her right to freedom of establishment? Is it enough that the workers have complied with domestic law, or is their action vulnerable to legal restraint?
Thirdly, to what extent are British workers at a disadvantage compared with workers in other member states by virtue of the fact that they are unable to rely on the charter as a defence in legal proceedings against them by an employer who claims that their action violates EU law? In effect, does the opt-out prioritise business rights over UK workers’ rights, as a number of my colleagues mentioned earlier?
Fourthly, we must assume that the charter is designed to add value to existing rights and principles in European law. If it does not, what is the point of it? What do the Government believe has been added and what do they believe will not be applicable in the United Kingdom?
To pursue those topics, I shall go back to the Laval and Viking cases—important European case law that emerged only at the end of last year, after the signing of what was initially the opt-out and subsequently became the protocol. They have profound implications for European labour law and specifically for this country, with its history of legal abstention, in respect of the role of the law in industrial relations.
Viking Line is a Finnish ferry company that decided in 2003 to reflag its vessel and employ an Estonian crew on Estonian pay and conditions, cutting its wage costs by some 60 per cent. The case was referred to the European Court of Justice, which ruled that in future any strike action affecting this freedom would have to meet stringent legal tests that the Court itself would assess. The key issue, which I find unprecedented, is that no longer does the legitimacy of industrial action rest upon the democratic mandate of the Union derived from its members and regulated through laws determined by the Parliaments of member states. Now it will also need to meet the criteria imposed and assessed by European judges. I see no precedent in domestic strike law in the UK.
The Laval case is central. As my hon. Friend the Member for Elmet (Colin Burgon) mentioned, Laval is a Latvian company, which in 2004 posted workers from Latvia to work on building sites in Sweden. The Swedish construction union asked the company to agree to the existing collective agreement within the building sector. The company refused, operating instead under the Latvian agreement, including a lower pay scale that undercut the Swedish workers’ wages.
Subsequently the Court ruled, essentially, that the company’s freedom to provide services in any member state should not be restricted by compliance with non-statutory collective bargaining agreements in one member state. Again, that has huge implications for an industrial relations system that is built on legal abstention and free collective bargaining, as in the British case.
Critically, the Court argued that because the EU posted workers directive set out minimum rights, it was unreasonable to force the company to comply with further non-statutory agreements at local or national level. So, instead of EU legislation setting minimum standards, which has been the argument over the past 20 years, going back to 1988 and Jacques Delors coming to the TUC, we now face the threat of those standards being seen as maximum criteria across the EU.
All of us on the Labo