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EU Charter of Fundamental Rights

Volume 570: debated on Tuesday 19 November 2013

(Urgent Question): To ask the Lord Chancellor and Secretary of State for Justice to make a statement on the status in the United Kingdom of the EU charter of fundamental rights following the ruling by Mr Justice Mostyn in the High Court on 7 November.

I thank my hon. Friend for giving the House an opportunity to consider the AB case, which we all noted last week, and which gained considerable publicity. I think it would be helpful for me to set out the position.

The claimant in that case raised the EU’s charter of fundamental rights when arguing that UK officials should not have allowed information about him to pass to the authorities of the country to which he was being removed. The case was dismissed on its facts but the judge in passing made some comments on the charter and the case law of the Court of Justice of the European Union in Luxembourg. The judge’s view was that the Luxembourg court had, in the case of NS, held that the charter could create new rights that apply in the UK. It is important to be very clear to the House: we do not agree with that analysis of the NS case. We intend to find another case—we cannot do it with this one as the Home Office was successful and we cannot appeal a case we have won—at the earliest opportunity to clarify beyond doubt the legal effects of the charter and to put the record straight.

It is no secret in this House that I would not personally have chosen to sign up to the Lisbon treaty or to the charter of fundamental rights. However, it is also important to say that the charter’s effects are limited to EU law within the UK, and I have not seen any evidence that it goes beyond that. I would be very concerned if there was any suggestion that the charter did in fact create new rights.

This is an important area, which is why this Government have included the extent of the EU’s competence on fundamental rights in our balance of competences review.

Does my right hon. Friend acknowledge the scale of the problem with which he is now faced, both constitutionally and practically, which would lead to the bypassing of the Government’s proposals for a British Bill of Rights and the repeal of the Human Rights Act, a policy that I established when I was shadow Attorney-General and which lasted until the coalition Government came to office? Does he appreciate that the import of Mr Justice Mostyn’s ruling opens the floodgates to a tidal wave of charter-based legal action, at enormous cost to the British taxpayer and businesses, and raises a fundamental clash between Westminster supremacy and the claims of the EU and the ECJ in respect of sections 2 and 3 of the European Communities Act 1972 that goes beyond mere renegotiation? Does he on behalf of the Government recognise that the amendments I tabled to the Lisbon Act—the European Union (Amendment) Act 2008—which the then Government voted against and the then official Opposition and the Lib Dems would not support, although 48 Conservative colleagues did vote for them, would have put our exclusion from the charter beyond any doubt? Will he therefore agree to support my proposal for urgent legislation as follows: “Notwithstanding any provision of the European Communities Act 1972, nothing in the Charter of Fundamental Rights of the European Union shall be binding in any legal proceedings of the United Kingdom and shall not form part of the law applicable in any part of the United Kingdom and that this Act reaffirms the supremacy of the United Kingdom Parliament”?

May I start by paying tribute to my hon. Friend for the work he has done in this House over the years in highlighting the complexities and challenges of EU law? He is a valuable contributor to these debates and we listen to him carefully. I have both listened to what he has said and I have taken extensive legal advice about the case last week. I think it is of fundamental importance that the impact of the charter in the United Kingdom is limited. We were made various promises about even that degree of involvement over the years, but we were not in power at that time. It is absolutely essential that it is limited in scope in the UK. I would treat it as a matter of the utmost seriousness if it were to emerge in law that that was no longer the case and that the charter was more broadly applicable than that.

I have to say that there are those in the European institutions who argue that it should have a broader impact than that, but I can provide some reassurance to my hon. Friend by saying that I was involved in such a discussion recently at a meeting in Brussels where the overwhelming view of member states present was that they did not wish it to have a broader remit than it does at the moment, and I say to him that we would treat any such situation with great seriousness. We do intend to make sure this issue is laid to rest in law at the earliest opportunity and, as always, I will be delighted to talk to him about his suggestions and about his concerns in this area.

Order. I think the hon. Gentleman will be talking to the Secretary of State. That will be a very important part of the discussion.

I commend the Justice Secretary for the cool, calm way in which he answered these questions today, in contrast to the way in which he spoke to the media about the case last week. The position is clear: in 2007, Britain specifically opted out of the charter of fundamental rights being enforceable when the Lisbon treaty was signed. There is no ambiguity about that, as even Mr Justice Mostyn agrees. In his judgment, after quoting the relevant protocol, he said:

“To my mind, it is absolutely clear that the contracting parties agreed that the Charter did not create one single further justiciable right in our domestic courts.”

Labour sought and successfully negotiated an opt-out from the charter. I commend the cool, calm way in which the right hon. Gentleman has explained the timeline and the judgment in 2011.

The right hon. Gentleman has explained why he did not appeal the judgment in Luxembourg in 2011, but he has also heard the concern about the confusion that that could cause in the judiciary. Will he publish the relevant legal advice so that all members of the judiciary can be made aware that there is no confusion, and that the charter is not enforceable in the UK courts? Will he also confirm that he understands that the concern relates to a ruling by the European Court of Justice in Luxembourg, which arbitrates on matters relating to the EU, and not by the European Court of Human Rights in Strasbourg, which deals with the European convention on human rights? For the avoidance of doubt, I am willing to work with the right hon. Gentleman to ensure that the UK’s opt-out from the EU charter of fundamental rights, which we negotiated, remains in place?

With apologies to the House, I am not prepared to take any lessons from Labour Members who landed us with a treaty and a charter that did far more than we were promised. I also apologise to the former Europe Minister, the right hon. Member for Leicester East (Keith Vaz), who is in his place, for taking his name in vain, but it was he who said in 2000 that Europe’s new charter of fundamental rights

“would have no greater legal standing before EU judges than a copy of the Beano or the Sun.”

He knows that that is simply not what happened, because the previous Government signed us up to something that we would not have chosen to sign. The right hon. Member for Tooting (Sadiq Khan) talks about an opt-out, but that is not what the Labour Government actually negotiated. They negotiated a protocol that stated that the charter would be applied only to EU law. That is the situation today, and it does not enable us to opt out of the charter. We are still subject to it in EU matters. Again, that is not what Labour said would be the case.

The right hon. Gentleman asked me to publish the legal advice. His party has a long track record of not publishing legal advice. As he knows, Governments have always resisted its publication, and that will continue, because it is an important part of a Minister’s job to be able to take advice in confidence from our Law Officers. He also made a point about the European Court of Human Rights. The truth is that we need change in both areas. We need change in our relationship with the European Union and in our relationship with the European Court of Human Rights. They are separate institutions, and we need change in both of them. A majority Conservative Government would deliver those changes.

I welcome the Government’s readiness to seek clarification in the courts at an appropriate stage. May I make it clear to the Justice Secretary that, up to now, there has always been a majority in this House in favour of our subscription to the European convention on human rights but no majority in favour of our subscription to the European charter of fundamental rights?

May I say how much I agree with my right hon. Friend? He will know that the two documents are contradictory in many respects. They contain comparable rights that are differently worded, leaving the courts uncertain about how, when and where they should be applied. I personally think that the charter of fundamental rights was an unnecessary document. It was signed up to by the previous Government, even though it directly contradicted the convention in many respects and was likely to cause legal confusion in the years ahead.

Order. There is notable interest in this subject, which I am keen to accommodate, but I am also keen to move on to the next business shortly after 1 o’clock. There is therefore a premium on brevity, which I know will now be observed by the right hon. Member for Blackburn (Mr Straw).

It will now, Mr Speaker.

First, will the Secretary of State accept that the wording of article 1 of protocol 30, whereby Britain opted out of the charter, could not be clearer? Nobody was duped; the wording makes it absolutely clear that the charter does not extend the ability of the European Court of Justice in Luxembourg or any other court, so far as British rights and duties are concerned. Secondly, as the right hon. Gentleman is now so aerated about this matter, will he explain what action he took once the decision of the European Court of Justice in 2011 first became known to him more than two years ago?

On the 2011 case, I was not Secretary of State at the time, so I did not take any action at all. That case—this remains the view of my Department—did not restate the legal position. The right hon. Gentleman is right about the protocol, which says that the charter applies to EU law and not to national law. Unfortunately, as we know, the Lisbon treaty is so vaguely worded in many respects that actually it allows the EU institutions to intrude in areas, such as social security, for example, that were expressly not envisioned in the treaty itself.

May I suggest to my right hon. Friend that the lawyers who are advising him to do nothing now are the same ones who advised the right hon. Member for Blackburn (Mr Straw) and his Government to believe in the integrity of this opt-out and that the European Court would not come after it? Is my right hon. Friend really advocating a policy of “do nothing”? That seems to be what he is suggesting. What we could do is legislate to protect United Kingdom law from the application of the charter of fundamental rights, as suggested by my hon. Friend the Member for Stone (Mr Cash), the Chair of the Select Committee.

I am absolutely not suggesting that we do nothing, and that is why we need to get this point clarified in law at the earliest opportunity. The recent Supreme Court case on prisoner voting has reassured me on this issue, but I say to my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) that I have every intention of testing this in law quickly. If we find that the legal position is not what we believe it to be, we will have to take further steps.

The Secretary of State is right to say that I was the Minister for Europe who negotiated the charter of fundamental rights. I am very clear that, as the former Foreign Secretary has said, this is not enforceable in UK domestic law and the protocol is absolutely clear, in article 1. I know why the Secretary of State is reacting as he is today, but I can say to him that if he needs to clarify the matter in the courts, I have no objection, and the House should have no objection, to that. I also have no objection to the legal advice that was given to me and the previous Government being released to this House—I think that would be a very good idea.

The truth is that we were reassured again and again by the previous Government that this document had no legal force at all. Of course it now does have legal force in European law. The issue is about whether that legal force extends to UK law. We regard that matter as being exceptionally important. If there were any question of that linkage being made, we would have to take steps on it.

Does the Lord Chancellor agree that to make things clear we should now insist that any judgment of the European Court of Justice needs to be confirmed by this House before it can be used by a court in this country? The ECJ is a political court; it extends the competence of the European Union under the treaties. It is for Parliament to resist that, so that our courts cannot take any judgment into account without our specific approval.

As my hon. Friend knows, I have a lot of sympathy with his concerns in this area. I have directly seen the way in which the ECJ has amended the rules on social security and left us in a position where we are apparently losing control of what should be a national competency under the treaty. These matters are essential ones for consideration as part of our party’s planned renegotiation of our membership of the European Union.

Although I recognise the good work being done by the present Chairman of the European Scrutiny Committee in pursuing his own view of where justice should lie in our relationship with the ECJ, I must ask the Lord Chancellor not to whip up hysteria on a question that has already been settled. In a unanimous report by the European Scrutiny Committee at the time, it was accepted, including by the Conservative Members, that the protocol allowed the UK to opt out of the charter of fundamental rights. It is not correct, when we are dealing with such difficult matters, to use this in a cheap political way, which he is doing.

I do not really recognise the comments of the hon. Gentleman. The reality is that we have a protocol that simply restates the legal position that European law and the charter of fundamental rights sit together and the charter does not apply in UK law. However, what we have seen over the past two or three years, in areas such as social security, is what we understood to be the scope of the treaty being extended by court judgments. We have to be immensely wary of that. It has happened in social security, it has happened in a way that causes real concerns across this House and we have to be very careful. I am absolutely clear that the charter should not apply in UK law, and we would take serious action if there were any suggestion that it could do.

I am a bear of little brain, Lord Chancellor, but is not the real problem here that the public, the people whom we represent, are losing faith in our institutions and in the ability of this country to assert its sovereignty?

I have never recognised my hon. Friend as a bear of little brain, but I know full well that he is well in touch with the views of his constituents, and these are issues of which we should be immensely mindful. I hope he accepts that both he and my colleagues on the Front Bench are very much united in the view that we need to take these concerns very seriously indeed.

I thank the hon. Member for Stone (Mr Cash) who has once again done a great service to the House and to the public in raising and highlighting this matter and in giving us an opportunity to discuss it. The Lord Chancellor talks about seeking a case to get the law clarified. Would it not be simpler to take the consensus that is here and legislate quickly to put the matter beyond any doubt? Why wait?

Our view is that there is not a legal need to legislate. We will test the point in a forthcoming case. If the point proves that the legal position is different from what we understand it to be, we will of course have to return to this House.

I noticed that my right hon. Friend said that a future majority Conservative Government would want to take steps to reassert this House’s sovereignty over EU legislation. Does that mean that we would not be able to take such steps if the Liberal Democrats were part of any future Government?

It is clear that there are many things that have united us politically in the past three years where we have done good work for this country but that there are areas—European issues and issues of human rights—where we take a different view. The mature approach in a coalition is to accept that those differences of views exist, to work collaboratively together when we agree and to be honest when we do not. That is what we will continue to do. I will certainly be on the doorsteps at the next general election arguing very strongly indeed for a Conservative approach that deals with many of these issues.

Is there any significance to the fact that there is no Liberal Democrat Minister on the Front Bench while the Lord Chancellor is making his statement?

Not at all. My Liberal Democrat Minister, Lord McNally, is a first-rate member of our team and has done good work for this Government. However, he is in the other place and is not entitled to sit alongside us.

Following the constructive response from the Secretary of State about how the coalition agrees on many of the issues under the justice remit, may we also get agreement that, although there are differences between us over whether the Human Rights Act 1998 was a proper tool for implementation, this country cannot remain in the Council of Europe unless we continue to subscribe to the European convention on human rights, which we have done for many decades? There must also be a consensus across the House that the European Union charter of fundamental rights should not extend to impose itself across our legislative process, and that has been our understanding from the beginning of its implementation.

That is very much the legal view of the Government at this moment in time. Were we to discover that that was not to be the case—the law has had a habit of moving around in recent years—I hope that all parties would come together and say that it is not acceptable and put in place measures that would prevent it from happening.

This development is likely to trump the excellent work that the Lord Chancellor is trying to do in rolling back the tide of human rights legislation. Is it not the case that it does not really matter what he or other Members in this House think? It is what the judges rule that counts. We are used to EU mission-creep extending its reach beyond what was ever envisaged. Is not the only protection from that to withdraw from the European Union altogether?

My view is that we should seek to renegotiate our membership and to address some of those issues, but it is a matter that will have to wait for a majority Conservative Government. I share many of my hon. Friend’s concerns and believe that we cannot go on in the way we are.

Is it not true that the Lord Chancellor does know the legal interpretation and is waiting for further instruction from the UK Independence party?

Can the House conclude from the Secretary of State’s previous answer that if on this point we could not renegotiate, he would support withdrawing from the European Union?

What I say to my hon. Friend is that we should never enter a renegotiation in the expectation that we will lose.

I welcome my right hon. Friend’s robust stance on this matter, but, as someone who is not one of the usual suspects on Europe—to the best of my knowledge I have never made a speech in this House on the subject—may I say that we really are at a Rubicon? If this does go into law, it would suggest that we have moved a very long way in a bad direction.

I take a clear view that there is an issue in all these matters around who governs Britain. My view is that Britain should be governed by this House. I can assure my hon. Friend that were we to discover that the charter had a broader legal reach than we understand to be the case at the moment, we would take rapid steps to address it.

On 21 January 2008, Hansard records the right hon. Member for East Renfrewshire (Mr Murphy), who was then the Europe Minister, saying:

“It is clear that the UK does not have an opt-out on the charter of fundamental rights”.—[Official Report, 21 January 2008; Vol. 470, c. 1317.]

On 14 November 2009, the current Prime Minister, then Leader of the Opposition, said:

“We will want a complete opt-out from the Charter of Fundamental Rights.”

Does the Lord Chancellor agree that this latest case demonstrates more than ever that if a complete opt-out is not agreed in any future renegotiation of Britain’s membership of the EU, the British people will be fully justified in voting to leave the European Union?

It is inconceivable that this country could accept a situation in which the charter of fundamental rights was applicable in domestic UK law. On that point, my hon. Friend and I are in great agreement. He has also highlighted another point. We went through a decade of the Labour party pulling the wool over our eyes over Europe, signing up to a treaty it promised again and again it would not sign up to, and signing up to a charter it said would be meaningless and have no legal effect and which does have legal effect. It cannot be trusted on Europe.