My Lords, I beg to move that the Bill be now further considered on Report.
Moved accordingly, and, on Question, Motion agreed to.
Clause 6 [Parliamentary control of decisions]:
[Amendments Nos. 17 to 24 had been withdrawn from the Marshalled List.]
25: After Clause 6, insert the following new Clause—
“Parliamentary control of opt-ins
(1) A Minister of the Crown may not commit the United Kingdom to new obligations, or alter the obligations of the United Kingdom, under the following provisions unless Parliamentary approval has been given in accordance with this section—
(a) Article 3 of the Protocol on the Position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as amended and renamed by the Treaty of Lisbon, permitting a notification of the wish to take part in the adoption and application of a proposed measure pursuant to Title V of Part 3 of the Treaty on the Functioning of the European Union,(b) Article 4 of that Protocol, permitting a notification of the wish to accept a measure adopted pursuant to Title V of Part 3 of the Treaty on the Functioning of the European Union,(c) Article 4 of the Protocol on the Schengen acquis integrated into the framework of the European Union, as amended by the Treaty of Lisbon, permitting a request to take part in some or all of that acquis,(d) Article 10(5) of the Protocol on Transitional Provisions annexed to the Treaty of Lisbon, permitting a notification of the wish to participate in acts which have ceased to apply to the United Kingdom pursuant to Article 10(4) of that Protocol.(2) Parliamentary approval is given if—
(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to commit the United Kingdom to new obligations, or to alter the obligations of the United Kingdom, and(b) each House agrees to the motion without amendment.(3) In this section “the Treaty on the Functioning of the European Union” means the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon).”
The noble Lord said: My Lords, Amendment No. 25 stands in my name and the names of the noble Lord, Lord Rowlands, the noble and learned Lord, Lord Morris, and the noble Viscount, Lord Bledisloe. The amendment was first debated prior to the publication of the Government’s response to the report of your Lordships’ Select Committee on the Constitution; the report was published on March 28 and the response has since been issued. I shall not reiterate today all the arguments that were advanced in favour of the amendment during the previous debate. Suffice it to say that, in the area of freedom, security and justice issues, criminal law and policing are being brought into Title V of the treaty on the functioning of the European Union, an innovation that your Lordships’ committee was advised, in evidence, amounted to fundamental constitutional change.
Your Lordships’ Select Committee recommended that the Government obtain approval from both Houses of Parliament before using so-called opt-ins or opt-outs. The committee said that that would be consistent with the Bill’s policy to require parliamentary approval of the simplified revisions procedure and passerelles.
The amendment received expressions of support from all sides of the House in Committee. European matters have transcended traditional party lines since the debates of the early 1970s prior to British entry into the then European Community. Had they not, Britain would not be part of the European Union. They have transcended traditional party allegiances, as I personally have reason to remember from more recent parliamentary deliberations.
Noble Lords, before and since the United Kingdom’s entry into the then European Community, have consistently argued at the hustings, in Parliament and elsewhere for a strong and effective participation in the proceedings of what is now the European Union; I number myself among them. They are acutely conscious of the need to maintain public confidence in what the Government do in Europe on our behalf. Senior officials who often labour long into the night negotiating for British interests in European fora, some distinguished alumni of which I see in their places today, are similarly aware of that necessity—hence the need for the most effective possible parliamentary scrutiny.
Since the Bill was in Committee, the noble Baroness the Leader of the House has engaged in extensive consultations, although not in any sense trying to—perish the thought—nobble committee members. She gave evidence to your Lordships’ Select Committee on the Constitution last week and, since then, has circulated a memorandum on justice and home affairs opt-ins. By the end of last week, she had succeeded in obtaining interdepartmental approval from the relevant government departments. Although, in an ideal world, it would have been convenient for the House to have had sight of the proposals at an earlier stage, as the Select Committee did, noble Lords who have been involved in seeking to achieve interdepartmental approval will recognise the phrase “trying to herd cats”. If I am reincarnated as a cat, there is nobody by whom I should prefer to be herded than the noble Baroness.
We look forward to hearing the proposals that the noble Baroness the Leader of the House has brought forward after listening to your Lordships. In the mean time, I beg to move.
My Lords, the noble Lord, Lord Goodlad, suggested earlier that it might be helpful to the House if I rose now to explain the proposal. I say to the noble Lord that I am a fervent cat lover and, therefore, were he to return as a cat, I can assure him of my best attentions at all times. I agree with him that I was in no way seeking to nobble anyone; rather, I was seeking to listen, to take note and to put forward proposals on the back of the debate in Committee.
We have circulated details of the proposals to everyone who has spoken in Committee or on Report so far. I am extremely grateful to the Constitution Committee for enabling me to appear before it last week. I am also grateful to the EU Committee, which met on the back of my initial proposals and gave me helpful feedback. To be complete, I have incorporated into the proposal all suggestions made to me by both committees on how we might enhance that. I do not say this to “herd” them into having to agree with me on everything; I say it to make it clear that I did not stop there but took note of what was put before me.
I begin where I left off in Committee. I was struck, as I said to the Constitution Committee, by the fact that your Lordships were seeking to make sure that the existing scrutiny processes, which we consider to be extremely good, were looked at again in the light of changes that were going to be made to justice and home affairs and that the proper and appropriate role for Parliament and your Lordships’ House should also be considered. The original amendment tabled in Committee by the noble Lord, Lord Goodlad, was a serious proposition that the Government thought was worth looking at. We took it away and had a look at what might be feasible, bearing in mind contributions put forward in debate and in consultation with the offices of the Attorney-General, the Home Secretary and the Secretary of State for Justice, which have endorsed what has come before your Lordships today.
I will briefly take your Lordships through the proposal that we have in mind. We begin by taking on board something raised by a number of noble Lords, which is the desire to have a sense of where the Government are going in strategic terms on justice and home affairs and to deal with the issue that I raised in Committee of seeking not to salami-slice all the different opt-ins, making a decision on each one potentially out of context with the others. First, the Government commit to bring forward on an annual basis a report that looks ahead at what the approach to the justice and home affairs policy and forthcoming dossiers would be, including where we know what our position would be on the opt-ins. I say “where we know” because, as I explained in Committee, it is not always possible to know, not least because of the consultations with other departments, stakeholders outside and the devolved Administrations. However, certainly where we do know, we will make it clear.
Every year that report would come forward to Parliament and it would be made available for debate in your Lordships’ House and another place. It would then form the basis of noble Lords’ understanding of the Government’s strategic approach for the year. The European Union Committee would be informed of comments made during those debates, which would help it to understand where your Lordships felt that there were issues that needed to be addressed in greater detail and issues that might be brought forward again. At the end of the year, we would reverse the process and produce a retrospective report that said what we had done, what the application of the protocol for opt-in had been, where we had opted in and where we had not opted in. That way noble Lords would see both ends of the annual spectrum, if I can put it like that.
When it comes to individual dossiers, the Government will put an explanatory memorandum before Parliament as swiftly as possible. We already agree that we would do it within 10 working days. “As swiftly as possible” means that we will endeavour to do it more quickly than that, but the maximum timeframe would be 10 working days. That would set out the proposal and, where possible, specific views as to whether or not the Government thought that it would opt in and the factors that were taken into account in making that decision. The committees in both Houses would then have the opportunity fully to review the proposal and the approach that the Government had taken on whether to opt in.
Let me recap on the opt-in procedure. The Government have precisely 13 weeks from the proposal being given to make the decision whether to opt in. If the Government do not opt in, they cannot participate in the working group discussions, support other colleagues in the European Union or affect what happens in debate on the issue concerned. They have the right, once the decisions have been finally taken, to opt in at the end of the process with the permission of the Council and the Commission, but they will not have been able to participate. Not opting in to a proposition that we might wish to is a serious matter for your Lordships to consider.
Provided that the committee presents its views on what the Government are proposing within 13 weeks, the Government will take into account the committee’s opinion on whether the UK should opt in. During that time, committees can, as now, call a Minister to give evidence and they can make a report to the House. If they wish to make a report to the House recommending a debate, perhaps on a Motion on which there can be a vote, they can do so. In other words, within the timeframe that we have set, the committee can bring to your Lordships’ House for debate an issue that it believes is significant and that your Lordships would wish to consider and it can propose to your Lordships that there should be a vote, which the Government would take into account.
In putting forward this proposal, the Government commit to find government time for such a debate, which would be agreed, as ever, through the usual channels. As I said, where this is done within eight weeks, we shall seek not to come to a conclusion before that, where possible. However, there is a tiny exception to that. When I looked back at all the different decisions that had been made, I noticed that there was one area in which decisions had been made more quickly, which related to the final text of a readmission agreement. These are often concluded with third states late in the day and concern people being returned to third states. Sometimes these come forward much more quickly to allow signatures to be sought at meetings. However, the committee will be familiar with those situations. Where a need to move more swiftly suddenly arises, we undertake to talk to the committee about how to deal with this procedure in that light. However, I stress that it is exceptionally rare for that to happen. I merely put it on the record for completeness. We shall ensure that we keep the committee fully informed if that were ever likely to happen.
We shall ensure that a Minister is available to appear before the committee. We suggest that this package of measures—comprising the annual reports at the beginning and end of the year, the explanatory memorandum, the guarantee of ministerial appearances, the Government’s promise not to make a decision within the eight weeks, the right of the committee to bring forward debates and the right of your Lordships’ House to vote on that—can be reflected in a code of practice. We also believe that, to obtain certainty in your Lordships’ House, we should either amend the scrutiny reserve resolution or bring forward a new resolution to sit alongside it. Lest your Lordships fear that we might pull a fast one by putting forward an unamendable proposition, the resolution will be able to be amended in your Lordships’ House. It would also be voted on in your Lordships’ House and in another place. It would incorporate all that I have said, after we have gone into the finer details with the noble Lord, Lord Grenfell, and his committee to ensure that we have captured absolutely everything. Your Lordships would then see it and agree to it or amend it to ensure that it was scrutinised. The noble Lord, Lord McNally, proposed that we should review this whole process—it is always good practice to do so—within three years to ensure that it is functioning properly.
That is the process that we have put forward. I shall not say much more about it except to mention that I checked how many opt-in resolutions or proposals we thought there would be over the coming three to five years, bearing in mind the new position. At present the average figure is about 30 to 40 a year. Due to the coming out of and going back into a whole series of measures, your Lordships will be faced with between 50 and 90 opt-in proposals a year. Therefore, I consider that the filter mechanism of the committee determining which should come before your Lordships’ House is even more important. I hope that that is helpful to the House.
My Lords, that is very helpful to the House. I thank the noble Baroness the Leader of the House for the tremendous work that she has put in to try to find a way through this. I also thank my noble friend for the work that he and his committee have done. As he rightly said, these are matters of fundamental constitutional change. Therefore, I thought that it might be helpful if I indicated at an early stage the reaction of the Opposition to these proposals. Thanks to the noble Baroness I received at lunchtime today a copy of the proposals, entitled Statement on JHA Opt-Ins.
I think that we are very well served by the committees of this House. I therefore pay tribute not only to my noble friend and his Constitution Committee but also to the noble Lord, Lord Grenfell, and the work of his European Union Committee. Indeed, I had the opportunity of sitting on that committee for a number of years.
We welcome this very important amendment. It takes us to the heart of our relationship with the European Union in general and our entire approach to the treaty. It has never been an easy relationship. Every time I see the noble Lord, Lord Roper, in his seat, I defer to him on the details, but as my noble friend just reminded us, our accession to the then European Economic Community perhaps happened only because 69 Labour MPs—guided personally by the noble Lord, as I recall it—rebelled in one historic vote. Then the small Liberal group in another place stuck to its guns and supported the Heath Government in some very tightly contested divisions on the European Communities Bill. As my own party’s troubles on Maastricht and other matters European proved, it does not necessarily get any easier. None the less, all those stresses and strains are the price we rightly pay for living in a parliamentary democracy.
It is, I suppose, a reflection of our troubled relationship with the European Union that these questions of protocols, opt-ins and opt-outs should arise at all. It is all a far cry from that original unifying vision of the six back in the late 1940s and early 1950s. But as the Union expands, so it must learn to show greater tolerance and flexibility. Indeed, as the noble Baroness the Leader of the House will know, in Clause 6 there are a number of provisions that follow the words:
“A Minister of the Crown may not vote in favour of or otherwise support a decision under any of the following unless Parliamentary approval has been given”.
All the instances are covered from (a) to (i).
As I understand it, the noble Lord’s amendment seeks to add to this list. The amendment makes it clear that he and his colleagues are addressing a recommendation from the Constitution Committee to ensure parliamentary approval of the decision to opt-in to any freedom, security and justice provisions. In order for parliamentary approval to be given, a Motion must be moved by a Minister of the Crown that,
“the House approves Her Majesty’s Government intention to commit the United Kingdom to new obligations”.
I think that that is agreed on all sides. That is the purpose.
We must put all that into context for a moment, as we seek to respond to the very detailed proposals that the noble Baroness has put forward. We are, of course, dealing with red lines. On 18 June 2007, when he was Prime Minister, Tony Blair stated to the Liaison Committee in another place that,
“we will not agree to give up our ability to control our common law and judicial and police system”.
What could be simpler than that? As I understand it, this amendment seeks to prevent the Government deciding suddenly, between now and the next election, to completely change their view and to seek to go against that undertaking. But we have a new Prime Minister and new Ministers and we do not know what will happen tomorrow; we may have further people in charge. That is the fundamental constitutional change that we are talking about, together with Schengen.
Let us judge what the noble Baroness is putting forward. I have always taken the view that it is a very good idea always to seek to improve our scrutiny procedures. That must be a given. I commend the noble Lord, Lord Grenfell, on his constant attempts to try to make sure that we move forward in our reforms. Here, we have a draft code of practice to ensure that Parliament’s views are fully considered. That is a point that we on these Benches find difficult to accept, because there is no scope for even having the Clause 6 proviso here if the amendment does not form part of the Bill.
I recognise that the noble Baroness is determined, if she possibly can, to avoid any amendment to the Bill, but this is not a fatal amendment; far from it. It does not in any way affect the treaty of Lisbon, but it does affect the way in which we in Parliament approach the serious constitutional changes that may or may not take place if the Government decide to opt in. The noble Baroness the Leader of the House is committing to table a report in Parliament each year on whether the Government would opt in and—if any views are forthcoming within eight weeks—to take account of any opinions of the committees regarding whether the UK should opt in.
I am always nervous of the phrase “to seek”. I am not going to quote The Scarlet Pimpernel, but to commit to seek to arrange a debate is not as forceful as arranging a debate. It is certainly not as forceful as saying that a debate and parliamentary approval are necessary before a matter can proceed. The final words of the memorandum are very clear; they are a commitment to ensure that Parliament’s views are fully considered.
It has also been my privilege to see the transcript of what the noble Baroness the Leader of the House told the Constitution Committee, which I believe is in draft form at present. I have a copy, and I hope that it will be made available. If I quote the noble Baroness incorrectly, perhaps she will take the opportunity to correct me. Let me quote her first—
My Lords, we hope that all these documents are open to everyone in the House.
The noble Baroness acknowledged, on the idea of a vote, that it would not be binding on the Government. The noble Baroness nods. That is what worries me the most. She goes on to say that the technical answer is that the Government would remain in control of it. The whole procedure is under the control of the Government. Again, the noble Baroness nods. The noble Baroness was then asked whether the Government would feel legally bound by a vote. The noble Baroness said that she would not. Those quotations do not do anything other than remind us that we are dealing with some very important constitutional issues. The amendment is quite simple; it clearly says that if the Government are to proceed to cross a red line, they would need to come to Parliament to seek approval. I remind noble Lords that the words of the amendment are:
“A Minister of the Crown may not commit the United Kingdom to new obligations, or alter the obligations of the United Kingdom … unless Parliamentary approval has been given”.
That is the question before this House.
It has been a traditional role of this place, which we prize beyond price, that we hold the Government to account. We are not debating scrutiny so much as parliamentary accountability. It is accountability that the debate turns on. I am afraid that the noble Baroness, for all her valiant attempts to seek to find a way through without amending the Bill, has neglected to give us the opportunity of utilising a crossing of the red line in the same way as we are going to deal with parliamentary control of decisions in Clause 6.
I am reminded that Mr David Heath in the other place, who has some very strong views on this issue, said that we must take seriously the question of parliamentary approval. That is what this debate is all about. Will Parliament be given the opportunity of giving approval to a crossing of the red line, and indeed the breaking of a firm commitment by Mr Blair, that we would not in any circumstances give up our ability to control our common law judicial and police system?
The noble Baroness is to be congratulated on trying to find a way through. I hope that we will be able to resolve today that parliamentary approval will be required if the Government decide to proceed in this direction. Whatever the result of this decision, if it means that the Bill goes back to the other place, the other place will have an opportunity to participate in the debate, which, because of the timetable Motion, it has not yet had the opportunity to do. It is vital that the other place, the elected House, has the same opportunity as we have to express its view on this important amendment, which I hope my noble friend will press to a vote.
My Lords, I am a member of the Constitution Committee, chaired by the noble Lord, Lord Goodlad, and I have added my name to this amendment. As your Lordships have heard, the noble Baroness the Leader of the House has toiled nobly and valiantly to discuss all the proposals with us. The question is: are the proposals on paper sufficient to enable us not to press the amendment, or should we insist on it? It is obviously right that these proposals do not amount to the totality of the amendment—government proposals in response to amendments seldom do so. But are they sufficient? In my view, they are. The difference is that under the amendment no opt-in could take place without an affirmative resolution of each House. Both Houses would have to decide to opt in, to opt out or to do anything different. Under the noble Baroness’s proposal the Government need only ensure that there is a debate. Perhaps I may say to the noble Lord, Lord Hunt, that it is very hard to criticise the noble Baroness for using the words, “seek to arrange the debate”. I am certain that a whole lot of constitutionalists in this House would have stamped their feet loudly if the Government had said that they “would” arrange a debate, because it is not in their gift. The noble Baroness should not be criticised for that, but I leave that on one side.
If both Houses vote no, it is extraordinarily unlikely that it would happen. It would be a brave Government who went ahead and did it none the less. Of course, the other place might vote yes with the Government and this place might vote no. There would be no use of the Parliament Acts; there is no way that the view of the House of Commons can be imposed on your Lordships. So, there would be deadlock. I do not think that the Government can be criticised for saying that that would not be acceptable in the long run. They will consider the views of noble Lords but must have the power, if needs be, to override them. There may be ingenious behind-the-scenes diplomacy where it is badly needed. It would therefore be better if your Lordships did not press the amendment and accepted what the noble Baroness said.
However, I would ask the noble Baroness to clarify one proposal. She did not mention in her summary the proposal that this should be reviewed three years after the treaty comes into force to ensure that the enhanced scrutiny measures are working effectively. Can she make it absolutely clear that the review is intended to improve detail and the efficiency of the system but that it cannot detract from what is promised in her statement? Subject to that, I suggest your Lordships do not press the amendment.
My Lords, it may help to clarify the position from these Benches, as the three-year look at this was my idea. It would be exactly as the noble Viscount, Lord Bledisloe, just said. I am sure the Minister will confirm that. It seemed likely that people would like to see exactly where we were going. I am a strong supporter of looking at what we have done as well as what we want to do.
Like the noble Lord, Lord Hunt, I would like to put this in context. I will not go all the way back to 1973, although it is sometimes a little hard from these Benches to be accused of inconsistency on these matters. As the noble Lord rightly says, both individuals and parties here represented have been solidly consistent about the European issue during those years. Our approach to this Bill has been that, compared with both the original Act and the amendments to the treaty, it goes further than any other in the direction of strengthening parliamentary accountability. It did so even as it set off, which won favour on our Benches. Along with that commitment to Europe has been an equally strong, consistent support for greater accountability, as my honourable friend David Heath indicated in the other place.
What has impressed us is how the parliamentary process has worked in this Bill—the House should congratulate itself on that. We sought at an early stage bilateral meetings with the Lord President. We expressed a real and serious problem with parliamentary accountability, particularly in this area, and sought movement. At the same time, as the House has heard, she carried out negotiations with both the Constitution Committee and the European Union Committee. Looking at those discussions, again the process has worked. We are not being asked to accept either a pig in a poke or a done deal. We have been able to influence and develop the issue as the Bill has progressed.
Like the noble Lord, Lord Hunt, my approach on this has been to ask how we maximise parliamentary accountability and at the same time maximise the opportunity for European co-operation on real issues that affect real people: crime, people trafficking, drugs and the rest. There is a danger in wanting to belt and brace the parliamentary accountability. A number of noble Lords who have intervened have long experience in government of how we get the parliamentary accountability while Ministers who have responsibilities to make decisions at that moment are able to do so in a reasonable way.
It strikes me that because of what has happened during the passage of the Bill and the approach of the noble Baroness the Lord President, we have reached a point where Parliament now has within its grasp a greater opportunity for accountability on European matters. Of course, there will always be those who say that this does not go far enough and who want more guarantees—indeed, for a humble solicitor, the noble Lord, Lord Hunt, is always silky in his approach to these matters—but if we are looking for a practical advance in parliamentary accountability, along with the flexibility that the noble Lord, Lord Hunt, advocated, this goes a long way and should satisfy Parliament.
My Lords, I am grateful to the noble Baroness the Leader of the House for reading the statement. I should preface my remarks by emphasising to your Lordships that the European Union Select Committee has not taken a position on the amendment tabled by the noble Lord, Lord Goodlad.
I shall comment briefly on the practicality in the eyes of the European Union Select Committee of the scrutiny proposals that we have heard from the noble Baroness the Leader of the House. I am bearing in mind the fact that, in my view, parliamentary accountability is based on good scrutiny. We are grateful for the assurances that we shall receive an Explanatory Memorandum no later than 10 working days after publication of the proposal. It is important that that is strictly adhered to. I shall give the House an example. Sub-Committee F of your Lordships’ European Union Select Committee is currently studying a proposal for legislation which the UK would have to opt into if it wished to participate. The Explanatory Memorandum was signed six weeks after the date of the publication, leaving our committee with two weeks in which to examine the proposal. We have to avoid things like that. Eight weeks is a demanding timetable for the Government and Parliament, and we hope that the Government can be sure that we have proper time for examination of these proposals.
If we report within the eight-week period and recommend a debate, we are relying on the usual channels to give time for that debate before the Government opt in. That is not spelt out in so many words in the statement that the noble Baroness the Leader of the House read, and I understand why, but we need to be sure that the usual channels will unfailingly deliver when the situation arises and when called upon to do so. Without that, we cannot do proper scrutiny and this House will not have a chance to give its verdict on a government decision to opt in.
My Lords, I welcome the statement made by my noble friend the Lord President and the care and consideration she has given to our amendment. The noble Baroness came to the Constitution Committee—indeed, she invited herself—to explain Her Majesty's Government’s attitude to our amendment and the difficulties it posed. I welcome her initiative. More years ago than I care to remember, I was told that the first rule of Welsh politics was: go to the meeting, be there before the meeting, stay in the meeting and be there at the end of the meeting. That saved me endless trouble. I did not always succeed, but at least it was worth the effort, so I commend my noble friend’s dialogue, which frequently achieves a great deal.
The crucial point is that Her Majesty's Government have made a great deal of the importance of the red lines. The engineer is hoist by his own petard. The greater the importance of the red lines, the more important it is for there to be proper machinery to scrutinise if there is a change of heart. The Government have come a long way to meet our concerns in the Constitution Committee, but I would be the first to concede that they have not come all the way. They have proposed that there will be an opportunity to scrutinise and, importantly, that the Government will take account of the opinions whether to opt in or out.
The European Union Committee will be able to separate the minor items from those of much greater consequence, which will be the kind of matters that I anticipate they will put forward for debate. It will be able to make such a recommendation on those matters to which it attaches significance. The Government will undertake to arrange the debate within the usual conventions, through the usual channels.
Crucially, the Motion, which I surmise will be in the name of the chairman of the European Union Committee, will be amendable. That is of the utmost importance; it will not be a Motion merely to take note, but one that is amendable. Therefore, there will be an opportunity for a Division and, in practice, for the House to approve or not to approve. That is of fundamental importance. Ultimately, it is for the Government to decide. I have furnished myself with a copy of the draft transcript of the conversations that we had in our formal committee meeting. I hope that as it has been referred to, there will be no objection to my doing the same and that it will not embarrass the noble Baroness. She said,
“It would not be binding on the government in the sense that the government’s position would be that in the end a government takes a decision whether to opt in or not. My view is that a government faced with a decision not to opt in would, in a sense, find it extremely difficult to make an alternative decision to that”.
If she emphasises the colossal embarrassment of going against the views of a committee of either this House or another place, she would do a great service to the House by emphasising the words in the draft, which so far have not been amended. I repeat that I am grateful to her for her efforts. It is the nearest we can get to a formal approval by the House. It would not be the end of the matter.
I want to add one other point. I refer again to the draft transcript, where I sought to press her about the need for some approval to be enshrined in her words. She said,
“I am very happy to look at the wording. I am not trying to wriggle any government out of not listening to parliament. I am very conscious that I equally do not want to mislead you or the House in the word ‘approval’ implying the government would never ignore it. What you are saying, quite reasonably, is that if you have a deadlock in both Houses then governments have to make a decision and time runs out. Can I think about how we can make it sound stronger?”.
I believe that this is as far as we can go. There could be a difference in either House; the elected House or ourselves. At the end of the day, the Government have to govern. It is the nearest we can get, as a signatory to the amendment, to a formal approval. In my view, it is more than scrutiny; it is scrutiny-plus. That is this House’s role and I would be content with that.
My Lords, one is debating against the most charming opponent in the Lord President and one has to be deeply persuasive in order to carry the day. But, while I hugely respect the noble and learned Lord, Lord Morris of Aberavon, and the noble Viscount, Lord Bledisloe, I hope that this is not as far as we can get in the matter. As my noble friend Lord Hunt pointed out—I support his speech as well as the amendment—under Clause 6 there are a number of important occasions where it is necessary for the Government to obtain the approval by a vote in both Houses. Therefore, the concept of obtaining that approval is not something that does not exist or could not be added to.
We are talking about the Lisbon treaty. I have the honour of being a member of your Lordships’ Select Committee on the Constitution. Our committee issued a report that stated that the treaty was constitutionally acceptable and did not represent a grave danger to the constitution. However, as my noble friend Lord Goodlad pointed out, we were advised that, but for the relevant red lines—the provisions on justice, home affairs, criminal law and associated matters—it would have meant very great constitutional change. So we are discussing matters of very great constitutional importance.
The four red lines supported by Tony Blair and the Labour Government are an essential part of the present Government’s attitude to the treaty—I do not think that they have resiled from them in principle. They involve the possibility of opting out and opting in. As the noble and learned Lord, Lord Morris of Aberavon, said, there is no doubt that what the noble Baroness said has increased to a considerable extent our power of scrutiny.
However, let me give just one example to illustrate the reason for worry. I happen to be a very strong supporter of the jury system. The present Government have made at least two—I think three—concerted efforts through Parliament to truncate the jury system. They were prevented by votes in Parliament. Would they have been prevented by non-binding scrutiny? I beg to suggest that they would not. I see the noble Baroness waving her hands. Obviously, she has a brilliant answer to this and no doubt at some point she will give it. I will wait until we hear what she says when she speaks again. I believe that Parliament should ultimately have control.
It has been said several times that it is for a Government to govern. Yes it is, but they govern if they have the support of Parliament. If they lose the support of Parliament, their entitlement to govern either in general or in particular should be either removed or truncated. It should be controlled in relation to these extremely important opt-ins and opt-outs. It is said that that is in practice very difficult; of course I defer to the noble Lord, Lord Grenfell, who has wisely warned the House that it is extremely important to keep to the extraordinarily tight timetable.
However—I welcome this—as the noble Baroness has said that what the Government plan to do will be the result of a report at the beginning of the year, if they plan to make some significant amendment to justice and home affairs matters, why do they not tell us then and arrange to get approval in advance—or at least arrange to get the debate going and get approval during the relevant eight weeks of the negotiation? It does not all have to be rushed ahead. If we were talking about small technical details, it might be very difficult. When I first heard from the noble Baroness, Lady Quin, that there were about 50 to 90 a year, or 400 overall, I began to think that this was a serious problem, but actually they would be packaged and the big issues would be identified in advance. Consequently, that is in no way insuperable. Indeed, it would be in the best parliamentary traditions to announce them in advance and obtain approval within a reasonable time. For those reasons, the amendment, as originally tabled by the Constitution Committee and before your Lordships today, is reasonable, sensible and in no sense extreme. I am not, as I think will be well known, a Eurosceptic. That will cause displeasure among some, but I am a great believer in the support of our fundamental constitutional rights, and it is important that we should defend them today.
My Lords, as a member of the Constitution Committee, too, I will explain where I stand on the position presented to us by the Minister.
From my parliamentary experience, the best possible Report stage of a Bill genuinely reflects the deliberations in Committee and consequently tries to address the issues that have arisen there. The process in Committee and between Committee and now is in the best possible tradition of a Committee-cum-Report stage. It is not only for the Minister to reflect on and address the issues, but for those of us who have spoken and who have argued the case, as I did in Committee, for the amendment. We must reflect on what we know. Do we know anything different? Do we know better? Do we need to adjust our position as a result of knowledge or experience gathered since?
I therefore draw the attention of the House to a couple of things that are influencing my thinking and my position. First, I frankly confess, although I am sure the vast majority of Members here today are not in my state of ignorance, that I did not fully appreciate the nature and number of these opt-in, opt-out decisions. Apparently they are nothing new. I have the list here. Since 2000, some 56 decisions have been taken to opt in and opt out.
I had the view, like the noble and learned Lord, Lord Lyell, that there were just three or four major issues on which we should focus and on which we should ensure that Parliament could decide. The truth is that this whole curious process, which I had not fully appreciated, is very different in character and content. There is a variety of opt-ins and opt-outs, many of them routine, technical or constitutional. It is therefore not feasible, as our committee originally suggested, that every opt-in and opt-out that the Government bring up can or should be subject to a parliamentary vote of approval. In one sense, therefore, the amendment does not make provision for the difference between the variety of opt-ins and opt-outs that are routine and technical and the select number that may or may not come before the House and that give rise to serious issues of sovereignty and parliamentary accountability.
That was my revision. I now understand rather more about this opt-in, opt-out procedure. I therefore welcome the Minister’s concept of an annual report, because frankly most of the opt-ins and opt-outs passed me by, and as a long-standing Eurosceptic I have tended to watch these things rather vigilantly. I have a track record that goes back to voting for a general election before the 1972 Act ever came into force. I also have a track record, as Members opposite will know, on Maastricht; I belonged to a minority in the other House on the Maastricht treaty. I therefore address this issue as a Eurosceptic, but I genuinely do not think that it is feasible or possible for the House to consider and approve every opt-in and opt-out that comes before us. That is why there must be a fundamental filtering system that is run by our European scrutiny committee.
Once we have had that scrutiny and our scrutiny committee has, I hope, identified serious issues with serious consequences that carry issues of sovereignty, the question is: what should be the procedure of the House? I do not believe that scrutiny for its own sake makes any sense. The whole idea is that it should inform the House so that it can make a better decision. But the House has to have the right to make a decision. Does my noble friend’s proposal make that possible? I understand why she has rejected an affirmative resolution procedure as exists in Clause 6. I assume it exists in Clause 6 because that clause deals, in passerelles and simplified procedures, with amendments to the treaties themselves. It is a treaty-amending process and, presumably, has a dimension of its own. I am very encouraged that my noble friend and others have included those provisions so that we cannot be bounced into treaty changes without the full knowledge and, indeed, the pre-knowledge, of both Houses.
Since that case has been made, should that procedure be applied to opt-ins and opt-outs? Opt-ins and opt-outs are matters of important public policy—for example, law and order, justice and home affairs—which governments should bring to the people and to both Houses. Like the noble Viscount, Lord Bledisloe, on reflection, I do not support the principle that this House should have a unilateral veto over such procedures, which is what we have recommended until now. They are matters of public policy and the view of the other place should prevail if there is a difference. Therefore, I do not think that I can support a total old-fashioned affirmative resolution procedure, which puts in the possession of this House a veto over opt-ins and opt-outs.
I am waiting for my noble friend to clarify further the process by which noble Lords at least will have the right to test the opinion of the House and to express an opinion in the House. I believe that that will be built into my noble friend’s provisions and will be made available to the House. If the committee recommends that this issue is of sufficient importance, we are guaranteed two things in this code of conduct; first, that the matter will come before the House and, secondly, that it will be brought before the House in such a manner and way that it can be voted on and amended if need be. That means that this House would have the right to express its opinion on any issue of consequence that the noble Lord, Lord Grenfell, and his committee might bring to our attention.
In this provision, we have at least the guarantee that noble Lords will be able to test the opinion of this House on a serious issue of opt-ins and opt-outs, and to vote on it. Therefore, I do not believe we should demand that further step and say that we should have a veto over such a proposal, especially if the other place goes another way. We are not just looking at issues of scrutiny. We are looking at scrutiny-plus, as my noble and learned friend Lord Morris suggested.
Another of my concerns and why, initially, one may have looked at putting a provision in the Bill and, therefore, enshrining it in statute is the concept of a code of conduct. Codes of conduct do not have the same binding force, et cetera, as a clause in a Bill or a section of an Act. But my noble friend again has come a long way to what members of the Constitution Committee pressed her on when she came before us last week; namely, that a code of conduct should be embedded by parliamentary procedure to ensure that it cannot be unilaterally changed or altered by this Government or future Governments. If it has to be changed, the Government should have to come back to this House and the other place and seek to amend it properly. That provision was not in the original draft. I think that the noble Lord, Lord Norton, proposed it specifically and the rest of us supported it. If the code of conduct was embedded in the process, it would give an extra assurance to both Houses that no Government could change or alter the process without agreement.
It is not feasible for this House to deal with every opt-in and opt-out that comes before us, but given a proper degree of scrutiny, a process by which the opinion of this House can be tested and voted upon and therefore exercised, and the embedding process that will ensure that this code of conduct can and will be truly accountable in parliamentary terms, I feel that I can support my noble friend’s proposals. In Committee, I gently suggested to her that the kind of proposal that was in our amendment, and is now in her proposal, chimed in with the Government’s attempt to bring constitutional renewal. We are doing so many other things to improve parliamentary accountability. I believe that my noble friend’s recommendation chimes in with, and is part and parcel of, a process of parliamentary accountability. As someone who has been around in one way or another since 1966, and has seen parliamentary accountability wane and wax under governments of all complexions, I believe that, with this and a number of other suggestions, we are enhancing our parliamentary accountability. For that reason, I shall be supporting my noble friend.
My Lords, I am most grateful. Noble Lords have just heard from a parliamentarian with great experience and are now hearing from a novice in parliamentary matters. I have the privilege of being a member of the Constitution Committee. I take that responsibility very seriously. As a newcomer, I was deeply impressed by the way the process occurred, with the Lord President coming before us and working to meet the genuine concerns of the committee about safeguarding the parliamentary position of both Houses, while at the same time recognising the practicalities of the European dimension that made the situation more complex than it would otherwise have been. As far as I know, this was a novel way of meeting and addressing that difficulty. As such, it would be desirable for it to have sympathetic and helpful consideration by this House. I am satisfied that it provides the protection that we need in regard to these opt-ins and opt-outs, which are not part of the everyday diet of this House. I see it as a way of achieving the same result, with deference to what the noble Lord, Lord Hunt, said, as would be obtained by the proposed amendment that was the initial way in which the committee sought to safeguard what we are all concerned to protect. Like some, but not all, members of the committee, I urge the House to accept this novel initiative.
I sought to press the Lord President on one matter of which I am very conscious. As we are dealing with questions that go to the heart of the concerns of the judiciary, there should be some indication of how the judiciary would be consulted about this immediate and quick process. So far, the Lord President has not found a way of accepting the suggestion I made, but I ask her to give it further consideration. It may be that there was no opportunity for her to do so in the time available, but if I may say so, the particular opt-ins I am talking about are of great importance to the judiciary. In the future it will not be possible for the Lord Chief Justice of the day to get in a taxi, come here and address your Lordships directly, which could have happened before, and I respectfully suggest that this concern needs to be taken into account. If the Lord President would find a way of doing that, I think that the judiciary would be most grateful.
My Lords, as a member of the European Union Committee, I thank the Lord President for what she has done over the past weeks to find a solution that seems to be widely acceptable to the House. As she will know, as well as the reference in the report of the Constitution Committee, paragraph 6.275 of the report on the Lisbon treaty by the European Union Committee, chaired by the noble Lord, Lord Grenfell, draws attention to the lack so far of any systematic scrutiny of opt-ins or opt-outs in the House and suggests that there is a need for us to work on that. We should congratulate the noble Lord, Lord Goodlad, and the Constitution Committee on tabling the amendment, because we have been able to move far faster on this as a result of that and of the consequent concentration of minds than we might otherwise have expected. We now have a set of proposals before the House, although we do not have the important scrutiny reserve resolution that we will see at a subsequent stage.
I take a different view from that of the noble and learned Lord, Lord Lyell, in that I see an important difference between these instruments and the passerelles. These instruments are of a special kind, on which the United Kingdom has to decide whether to opt in or opt out, but they are much closer to other instruments that come before the scrutiny committee. Here I agree strongly with the noble and learned Lord, Lord Morris, that we want a scrutiny-plus system, as we have established here, rather than something that runs in parallel with the passerelle system, the Clause 6 provisions. It is important that we should be able to carry out scrutiny within this period of six weeks, then two weeks and 10 days, which would give us up to eight weeks, and then have an opportunity, if the European Union Committee felt it appropriate, to bring to the House the instrument that could be opted in to.
I suppose that there could be occasions on which the Government would announce that they were not going to opt in, but the committee felt that noble Lords ought to be given an opportunity to consider whether or not they would want to recommend that course. The thing could work in more than one way in a debate. As the noble Baroness said in introducing her proposals, what is important is that almost every debate from the European Union Committee comes to the House on a Motion to take note—that is, the Motion is not amendable. This would be scrutiny-plus because, as the noble and learned Lord, Lord Morris, pointed out, it makes it absolutely clear that these would be amendable take-note Motions. It would be up to Members of the House—not the committee—if they so wished to table an amendment so that the House could express its view; indeed, that would be similar to the provision in another place. It would be surprising if, in those circumstances, when either or both Houses had expressed a clear view against a particular position, the Government would go ahead with it. Technically, the Government would not be bound, but there would be a significant political constraint. I believe, therefore, that we have found a satisfactory solution to this.
I end by thanking the Leader of the House for the amount of time that she has spent with her officials on finding the solution. We are anxious to see the scrutiny reserve resolution and we note that it is to be amendable, so if we are not satisfied it will be possible to have a further debate and, indeed, to make a change. In the mean time, I believe that we have a satisfactory solution and that it is therefore not necessary to support the amendment tabled by the noble Lord, Lord Goodlad.
My Lords, like the noble and learned Lord, Lord Woolf, I am a member of the Select Committee on the Constitution; in fact, I am the seventh member of the committee to speak. I ought to point out to Members of the House that we are all speaking as individuals, even though we are members of the committee. This is not like a debate on a Motion to take note on a Select Committee report. We have all come to our conclusions—sometimes different and sometimes the same—based on the information that we have had, the data that we have seen, the witnesses from whom we have heard and, above all, what the Lord President said when she kindly came to address us last Wednesday. It is a shame that she does not have a copy of the verbatim report of the proceedings, but I have looked through it and I do not believe that that matters at all.
I have only a few comments to make and will not detain your Lordships. The whole debate has gone from tiny details to huge issues. We were told that the British Government would die in the ditch for the red lines. I have always believed that to be so. Why, therefore, are the Government afraid of presenting their views on a situation in which we would want to opt in? Why are they afraid of presenting their views to both Houses of Parliament for debate, as is the normal procedure for debates in this House and as is the normal procedure for any government proposal in the Queen’s Speech? This is the old, time-tested formula that has been in existence for centuries.
I do not buy into the suggestion that, if we did not grasp something that came out of Brussels and go for it within eight or 10 weeks, we would be doomed for ever. That message is coming out from those who do not want to support the admirable proposal of the noble Lord, Lord Goodlad. I also do not buy into the view that a review in three years’ time is a great thing and utterly praiseworthy. By that time, we will have absolutely no hope whatever of changing anything. We can review, but the purpose of a review, particularly in business, is to ensure that we do not make the same mistakes again. By that time, there would be nothing to make a mistake about. I do not buy into that idea.
This is not about dealing with between 50 to 90 opt-ins. We are dealing with just those on the justice and home affairs issues that are fundamental to our constitution. We are not dealing with anything to do with the size of this, the price of that or the length of the other; this is fundamental to our constitution, so we should not bypass Parliament and the normal procedures of scrutiny and debate. I come unstuck with what some speakers have already said because we are not talking about the House of Lords saying, “You cannot do this”; we are talking about the normal procedure. We would, as we always do, ask the Government to review something, the matter would go back to the House of Commons and we would know where the final decision would be made. I really want us to think clearly about this issue. We should think not about the 50 to 90 opt-ins or opt-outs, but about what we are doing to our long-term jurisdiction as parliamentarians.
My Lords, the noble Baroness referred to the wisdom of the centuries on the British constitution, but in earlier centuries we did not have ease of travel between Britain and the Continent. Much of what has happened in justice and home affairs has been a response to the ease of travel between here and the Continent because of, for example, the invention of the aircraft; I think that the noble Baroness has some familiarity with the airline industry. Are we not partly dealing with adaptation to the revolution that is globalisation and Europeanisation, in which the noble Baroness has the opportunity, as we all have, to travel easily between Britain and the Continent, as do many other people who are not so law-abiding?
My Lords, I very much admire the noble Lord, as he well knows. We have these sorts of discussions. The reality is that that is the way in which law evolves. This is something completely new and obviously we need parliamentary scrutiny even more so than on something that has been around for generations.
My Lords, like many other speakers, I am a member of your Lordships’ Constitution Committee. On this issue, the noble and learned Lord, Lord Lyell, and the noble Baroness, Lady O’Cathain, are on the other extreme of arguments from me, although perhaps the use of the word “extreme” in relation to a moderate body such as the Constitution Committee is not appropriate. There is a spectrum of views in the committee. The noble Baroness, Lady O’Cathain, rightly referred to the fact that we are speaking as individuals in this debate.
I warmly endorse the comments made by the noble Lord, Lord McNally, particularly in reminding us that parliamentary involvement in European affairs will be greatly improved overall by this treaty. That is particularly true with regard to justice and home affairs, where national parliaments across Europe—not just here—will have a more prominent role in JHA co-operation through the subsidiarity mechanism, through evaluating Eurojust’s work and through greater scrutiny of Europol, as well as through a power to veto moves from unanimity to QMV in certain key areas. I believe that the arrangements that have been outlined for the Houses of Parliament in this country represent a considerable improvement on what has gone before. That is an important context within which we should view the current debate.
In Committee, the view was frequently expressed that we should be careful about Governments trying to sneak important things through without Parliament being aware of them in the area of justice and home affairs. Indeed, my noble friend the Leader of the House referred to this when she used the phrase, “pull a fast one”. Other noble Lords have referred to this concern. I am not sure that there has ever been a real danger of that happening. In my own fairly brief experience as a Home Office Minister, when I regularly attended Justice and Home Affairs Councils, I was not aware of major decisions being made that were not brought to the attention of Parliament or on which we did not have a good idea of what Parliament’s views were. I am not making a party-political point because I am not aware of previous Governments operating in that way in the European sphere, either.
However, the additional changes that the Leader of the House has outlined are welcome, particularly the proposals for a report to allow both Houses to give a strategic overview of justice and home affairs, the reporting-back mechanism, whereby we can review more effectively what has happened in this area, and the timetable for specific proposals on opt-ins. A number of speakers have already referred to the fact that there can be a large number of opt-ins. My noble friend Lord Rowlands rightly said that the aim was not to give Parliament a cumbersome system that meant examining all kinds of minor proposals that, through the normal scrutiny process, would have been deemed to be acceptable in any case. However, the procedure that the amendment envisages would be applicable in any possible consideration of opt-ins and so would give Parliament a cumbersome procedure. I believe that the arrangements that the Leader of the House has outlined are a great improvement on the ones envisaged in the amendment. I hope that the compromise that is on offer will be grasped with enthusiasm by Members of your Lordships’ House.
I conclude by saying that, although I did not support the amendment in the Constitution Committee and do not feel as strongly on this issue as others do, I recognise that the pressure exerted by the committee has resulted in real change. For that reason, I pay tribute to the committee and its members.
My Lords, I have listened to this entire debate and the arguments. I have heard no wholly convincing argument for rejecting the proposal of my noble friend Lord Goodlad on parliamentary approval. The only alternative is the suggestion made by the noble Baroness the Leader of the House. In principle, if there were nothing else, I would of course accept that. However, there is something else. There is no real justification for choosing what the noble Baroness has said and rejecting the amendment. I hope that your Lordships will support it.
My Lords, I am goaded into contributing to this debate, having done so in Committee, not because I have the honour to be chairman of the sub-committee of the committee of the noble Lord, Lord Grenfell, that is likely to have to deal with these home affairs matters, but by the remarks of the noble and learned Lord, Lord Morris, endorsed by the noble Lord, Lord Rowlands—both friends of mine—which were entirely wrong.
The noble and learned Lord, Lord Morris, said that this was not scrutiny but scrutiny-plus. I profoundly disagree. Over the next moment or two, I shall speak on the whole spectrum of parliamentary scrutiny. The proposal is clearly second-class scrutiny. Let us look at other forms of parliamentary scrutiny. Some statutory instruments are subject to affirmative resolution. Parliament is faced with 150 to 200 of those statutory instruments, which the Minster is not allowed to sign and turn into law unless there is a positive, affirmative resolution by both Houses.
The proposal of the noble Baroness the Leader of the House denies that procedure to issues of opt-ins and opt-outs. Opt-ins are significantly the more important, so I hope that the noble Baroness will explain, when she responds, why there should be an inferior form of scrutiny for them. As the noble and learned Lord, Lord Woolf, said, there are issues here that go to the heart of the judiciary. They are of huge importance. Many of those 150 to 200 statutory instruments are of infinitely less importance. They often go through both Houses on the nod, without debate, but must also be approved by both Houses in a debate.
I ask the House to consider carefully whether it is wise, when we can equalise the level of scrutiny between statutory instruments and this issue, to give a future Government the opportunity, to quote the noble Baroness the Leader of the House, to “pull a fast one”. She acknowledged that, under this procedure, Governments could “pull a fast one”.
My Lords, I am glad to have the opportunity to follow the noble Lord, Lord Jopling, who, like me, serves as a member of the European Union Committee. As its chairman, the noble Lord, Lord Grenfell, reminded us earlier today, that committee has not taken a common stance on the amendment tabled by the noble Lord, Lord Goodlad.
I profoundly disagree with the remarks that we have just heard from the noble Lord, Lord Jopling. Not all statutory instruments are subject to affirmative resolution. Not all matters that will be subject to opt-ins will be of profound importance; some of them may be quite unimportant. What is attractive about the procedure that has been advanced by the Lord President and was considered by the Select Committee is the possibility that scrutiny-plus will allow that committee to take into consideration the seriousness and the priorities of the issues and to table a Motion that will be amendable. Amendable Motions go beyond the normal scrutiny of statutory instruments, which are usually either rejected or affirmed. This seems to me a more sophisticated form of parliamentary scrutiny than what we have enjoyed before. For that, it is welcome.
I congratulate the Constitution Committee on raising this issue. I do not find it surprising that it should have put forward a proposal that is on the surface in line with the provisions of Clause 6 of the Bill. However, it has to be acknowledged that the matters covered by Clause 6 are very different in kind from those that will be considered under the opt-in or opt-out arrangements that relate to justice and home affairs. The Clause 6 provisions, which provide specifically for a new form of control over the negotiating authority of the Government, are a new, almost revolutionary form of ex ante control and relate to the decision-making process of the European Union. They do not relate to substantive issues of policy, which are normally allowed in our parliamentary democracy to be matters for the Executive, subject, of course, to the approval of Parliament. The superficial similarity of treatment between the provisions of Clause 6 and the proposals in the amendment in the name of the noble Lord, Lord Goodlad, and his colleagues can quickly be seen to be inapposite, because what is at stake in the case of the passerelle or different methods of decision-making can have a long-lasting effect on a wide range of issues. The matters that are covered by the opt-in and opt-out are precise, specific and eminently to be considered and decided by the Executive, subject to the approval of Parliament. It is wrong to erect such—
My Lords, the noble Lord keeps saying that the proposal that the Government have put to us means that these questions of opt-in will be subject to the approval of Parliament. However, as the noble Viscount, Lord Bledisloe, made clear in his intervention, these, however important, will effectively be at the very most subject only to the control of one House of Parliament—the House of Commons. That is the issue that faces us today.
My Lords, I do not read the statement made by the Leader of the House in that sense at all. It is clear that the forthcoming Motions would be amendable and could be considered by this House, following consideration by the Select Committee. As I said, that seems to me a more sophisticated approach, enabling this House to take a balanced view on the importance of the issue before it. That view may be affected—as it should be—by the consideration that the opportunity to make a move may not necessarily recur quickly, which is something that the Government may be well placed to recognise in their continuing negotiations.
This whole debate has shown our Parliament in a remarkable light. It has not been an occasion on which positions have been taken up that are fortified by party allegiances or even stem from party allegiances; it has been a debate in which views have been advanced and modified. I suggest with great humility to the noble Lord, Lord Hunt, that he should modify the view that he expressed by listening to the views expressed by several members of his committee, which I believe were profoundly persuasive. I refer to the views of the noble Viscount, Lord Bledisloe, the noble Lord, Lord Rowlands, and the noble and learned Lord, Lord Morris. It seems to me that the House has moved forward since that important report was produced and has acknowledged the strength of the argument advanced by the noble Baroness the Leader of the House, which I hope will win the day.
My Lords, we started this debate talking about the problems and pleasures of herding cats but I found myself thinking more and more of the problems and pleasures of herding weasels. I have never heard so many weasel words being used—inform, concede, consult, listen, debate, vote and take into account. I hope that what we are discussing today is not parliamentary consultation and influence but parliamentary control over the Government. I say that for two big reasons. First, I was lucky enough to be a member of the committee chaired by the noble Lord, Lord Grenfell, and I am now a member of the committee chaired by my noble friend Lord Jopling. How often have we seen that great phrase “scrutiny override” used? What is the reason for that? It is not so much that Ministers are ill intentioned but that they are often powerless.
Alan Clark’s Diaries state under the entry for 18 February 1986:
“Not that it makes the slightest difference to the conclusions of a meeting what Ministers say. Everything is decided, horse-traded off, by officials at Coreper … The Ministers arrive on the scene at the last minute, hot, tired, ill or drunk (sometimes all of these together), read out their piece and depart”.
It is to enable Ministers to control Brussels that I believe we need to vote in favour of this measure.
My Lords, as I am neither a member of the Constitution Committee nor—for the time being, I hope temporarily only—have anything to do with the European Committee, I hope that my innumerable years’ service on the Legal Affairs and Constitutional Affairs Committees of the European Parliament will enable me to make a minor contribution.
In her elegant and plausible introduction to the Government’s policy the Leader of the House made an analogous argument to that on the scrutiny of policy. Yet, as we have seen from this debate this afternoon, at European level there are two separate issues for consideration: policy and competence. Competence is a different question from policy. One could describe our discussion in shorthand terms as concerning red lines and whether to cross them. I wish to make clear that I am not a Eurosceptic and I have no trouble with crossing red lines if it is in the national interest to do so. However, in the context of competence and red lines, we are talking about Parliament’s authority. In the context of whether parliamentary authority should be granted, I believe that Parliament and not the Government should be in charge. If too many proposals come before Parliament for it easily to handle, it is for Parliament to change its rules in order to be able to deal with them. This particular cart and horse should be that way round.
We have heard a lot about accountability but I do not believe this is about that; it is about authority. The citizens of this country understand the distinction between accountability and authority and expect it to be understood and included in the Bill.
My Lords, I am in your Lordships’ hands because I have already spoken, but I felt that the time may have come for me to respond briefly to the points raised by noble Lords. I see the noble Lord, Lord Hunt of Wirral, nodding. I apologise to my noble friend but I did get that sense.
I am extremely grateful to everybody who has spoken. It is wonderful to see some people who I have not seen for a while. I promised myself that I would tell the noble Lord, Lord Lloyd-Webber, that I enjoyed “American Idol”, in which he featured. I am a huge fan of the programme and I think that the right guy won. The noble Lord will know what I mean by that.
At the beginning I said something about the transcript and that I was slightly shocked. I was shocked because I understood that the process normally adhered to is that members of the committee receive the uncorrected transcript, but normally the witness receives it as well and has a chance to comment. I had not seen it until after the noble Lord, Lord Hunt of Wirral, who is not on the committee, had made reference to it. I do not know how the noble Lord got a copy of it, and I have tried to find out exactly why I did not get one. I have no objection to the noble Lord having a copy, but if I looked startled, that was what it was about. I hope to get an answer to that today.
I want to explore the myth that this 13-week timetable may be infinitely moveable, flexible or is somehow known about long before the proposals come forward. Although we may know in general terms where proposals might be coming forward, it is my personal experience—and probably that of other noble Lords who have been in the same position—that until the proposal is received on the first day of the 13 weeks, one is not sure exactly what is in the proposal and or what the position should be. I would not want that to be misunderstood. Equally, like other Governments, we believe very strongly in consulting properly on what is in those proposals. Indeed, the noble and learned Lord, Lord Woolf, will remember that he chaired meetings at the Bank of England for me on Rome I when we were looking at the proposals. So it is a very tight timetable and that is one of the factors that I have tried to take into account.
I am extremely pleased that noble Lords have thanked me for my contribution to the Constitution Committee. It was a great privilege to appear before the committee. I am delighted that of the four people who have put down their names to move this amendment, three have already indicated that they are satisfied with what I did. I accept that everyone is speaking in a personal capacity but I hope that the House will take note of that.
The noble Viscount, Lord Bledisloe, said that we must be absolutely sure that we cannot go backwards in a review. That will be written into the procedure to make sure that that could not happen. The review is intended to refine and move forward, not to dig up what is agreed in this process.
The noble Lord, Lord Grenfell, wanted to ensure that there is a guarantee of a debate and not just the usual channels and so forth. We will write that in to the scrutiny. I know that the usual channels will be comfortable with that and we will find a form of words. As I indicated, I think that the best way forward is to put alongside this a separate scrutiny reserve resolution that your Lordships will see again, debate and vote on in full before it is approved. That should be drawn up in conjunction with the noble Lord, Lord Grenfell. It will be drawn up with Mr Connarty in another place so that it is absolutely clear that the procedures of each House will be fully adhered to. The promises and commitments that I have made will also be adhered to. That will be amendable in your Lordships’ House.
In response to my noble and learned friend Lord Morris of Aberavon, the vote on the proposals that might come out of the committee would also be an amendable resolution. It is not the equivalent of a statutory instrument, which I know is one of the concerns of noble Lords. I talked in the committee about the difficulties of a vote in both Houses leading to a deadlock, not least because of the 13-week timetable. The noble Lord, Lord Maclennan, is right—some of these issues are minor and technical, some of them are more substantive. Although I know that in my conversations with noble Lords the focus has been about whether the Government choose to opt in, it is also important to look at whether they choose to come out of something. That is very important.
It may well be that the day would come when a committee of your Lordships’ House felt that it was important that the House debated and voted on whether the Government should pull out of something, in the interests of this country. The noble and learned Lord, Lord Lyell, was concerned that these might come in packages. It has never been my experience that they come in packages, and even if we had them coming one on one, they are all separate legal instruments that must be debated under the proposal and voted on individually. It is not a case of packaging it all together; they would have to be taken separately. As I have already indicated, we do not always know at the beginning of a year exactly what will be forthcoming, but we can set out our strategy and our view on the issues that we know will be coming up.
I say to my noble friend Lord Rowlands that what my noble friend said in Committee about not necessarily being aware of all the issues around justice and home affairs and the opt-ins led to the proposal for an annual report at the beginning and an annual review at the end. It is entirely down to what he said that that will happen. I am delighted that the noble and learned Lord, Lord Woolf, is satisfied. I am looking at the judiciary. I do not have to have it for this process, but I have taken it on board and I have fed it in, as the noble and learned Lord would expect. I promise to come back to him on that.
A number of noble Lords, not least the noble Baroness, Lady O’Cathain, have asked about the 13 weeks, which is a very strict deadline. After 91 days, if you are not in the proposal, you are not participating in the discussions and debates. You are not in the working groups, you are not influencing the decisions and you are not supporting other member states that would find it incredibly valuable to have the UK on-side. You are not amending the proposal, which may be fine, but which you may like to see made stronger. You are not there, and you are certainly not being allowed to speak in the discussions of the Justice and Home Affairs Council on the issue, because you are not part of it.
When the process is complete, we could, if we wish, seek permission from the Commission and the Council to join the proposal, and that may well be forthcoming. However, it would be on a proposal that we would have had no say in, which we may have initially thought was in the interests of the UK, but which could be made stronger. That is an important point—
My Lords, I am extremely grateful to the noble Baroness, and I apologise for interrupting those very detailed comments. If, as she appears to be arguing, we are going to, in effect, deny the other place the opportunity to look at this issue again, we need to be absolutely clear about what she is proposing. The proposal makes an exception. It says that where an earlier opt-in decision is necessary, those rules will not apply. In fact, it will be in the Government’s gift to say, “I am sorry, we have overridden that particular opt-in opportunity”. Does that fit in with the detail of the timetable that she is talking about?
My Lords, I tried to address that in my opening remarks. I checked, and the Home Office has overridden scrutiny only once in the past year. There is a procedure whereby, when one is looking for readmission agreements with third countries—to return third country nationals from the European Union—there have been occasions when the signatories needed for the countries to agree that they are going to send back third country nationals have taken place within six weeks. That has led to a quicker process. That is the only example that I could find, and I raise it specifically to make it clear that there could be exceptional circumstances.
When we look at the scrutiny or reserve resolution that we put before your Lordships’ House, we will have had time by then to discuss with the EU Committee how it wishes us to handle it. I do not want to pretend that it has never happened, because it has. There were a specific set of circumstances in which it did happen. Therefore, I cannot pretend that it may never happen again. Such an agreement might come forward, and we will find a way of dealing with that.
The noble Lord is right to raise the “weasel word” point made by the noble Lord, Lord Marlesford; whether there is anything that is weaselly in any attempt to say that there will never be such circumstances or that the Government could say, “Actually, there are 20 times when that would happen”. Hence, my being very precise about it. We will make sure that we cover that in the resolution. It will come back to your Lordships’ House, it will be amendable, and noble Lords will be able to vote on it.
I cannot say that it will never happen, but it will be extremely exceptional. We will find a process of dealing with it that does not take away from the committee the opportunity to consider it, bearing in mind that that will be the timetable. I hope that that will help the noble Lord. Alan Clark’s diaries are very good but I do not see them as an authority on this issue. I would rather go on my own experiences of the European Union and, in particular, of the Justice and Home Affairs Council.
I hope that what I have said takes us to a place where your Lordships will feel comfortable. I am extremely grateful to everybody who has spoken. I do not know what the noble Lord, Lord Goodlad, will do—we are in his hands—but I am grateful that the other three noble Lords who added their names have thus far indicated that I have done enough to demonstrate the Government’s commitment to ensure that Parliament has a proper place in this.
My Lords, this has been an extremely valuable debate which has exposed a variety of deeply held views. I begin by expressing my renewed gratitude to the noble Baroness the Leader of the House for the extremely constructive way in which she has sought to carry forward the discussion.
As I said at the beginning, since the early 1970s, before we acceded to the European Community, debates on European matters were characterised by a cross-party nature and traditional party allegiances were set aside. That was certainly the case in recent years, as I have good cause to remember. I am not sure that today’s debate has borne out my prediction as much as I thought it might.
My view—I speak purely for myself; other members of the Constitution Committee have expressed their own views—is that the constitution should be clarified in the Bill. We heard the commitments that the noble Baroness made on behalf of the Government and the aspirations that she expressed; some of them were inchoate but no doubt they can be clarified. As I mentioned, many noble Lords have worked in the vineyards of the hustings, in Parliament and elsewhere over many years to support the cause of Britain in Europe, and many public officials, some of whose alumni are in their places today, have sat up late at night negotiating on Britain’s behalf. All are equally aware of the necessity of maintaining public confidence.
It is preferable that provision for parliamentary scrutiny is in the Bill, and in my view the best shot so far has been in the terms of the amendment. If that is not the case, it can be returned to at Third Reading. Such has been the widespread support for that view in this House that it is within our traditions that the opinion of the House should be sought.
26: After Clause 6, insert the following new Clause—
“Position of the Monarch
(1) Within six months of the coming into force of this Act, the Secretary of State shall lay a report before Parliament on the constitutional position of the Monarch in relation to Her people, Parliament and Ministers—
(a) prior to ratification of the Treaty of Lisbon, and(b) following ratification of the Treaty of Lisbon.(2) Within one month of the laying of the report, a Minister of the Crown shall move a motion in each House of Parliament that the House approves the report.
(3) In subsection (2), the reference to “one month” does not include any period of time in which the House in question is dissolved, prorogued or in recess for a period of more than four days.”
The noble Lord said: I apologise for the delay, my Lords, but I got locked out.
I am sure that the whole of your Lordships’ House is united in the deep respect, gratitude and loyalty we bear to Her Majesty the Queen. I feel sure that we all approach the amendment with the greatest care. I am advised that it is in order for us to debate the monarch’s position as it may be affected by the Lisbon treaty, but we must not attempt to use the Queen’s name to influence a decision of the House; nor must we impute any views to the Queen herself, whom may God continue to bless and preserve.
The relationship between the Crown and the British people has evolved over many centuries: Magna Carta; the civil war and the execution of Charles I; the restoration, the Bill of Rights and the Act of Union have all contributed to the constitutional monarchy that we enjoy today. The Bill of Rights of 1689 is often held up as the nearest thing we have to a written constitution. The Eurosceptic movement in this country often quotes one of its principal declarations, to condemn the project of the European Union. That declaration states:
“no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm”.
Perhaps the best definition of the monarch’s position comes to us from Bagehot in 1687, in his work, The English Constitution—
I am sorry, my Lords, it was 1867. Bagehot held that the sovereign had three principal rights or powers: to be consulted, to encourage and to warn. Inherent in those three rights is of course a fourth: the right to be informed. As I understand it, that is still the generally accepted position today and is reflected in the Prime Minister of the day’s weekly private audience with Her Majesty.
I think that it is also generally accepted that the Queen has one further duty, which is to maintain a Government. One thinks here of a possible hung Parliament and the situation that arose in 1974.
There are two other vital aspects of our unwritten constitution. One is that the Queen acts on the advice of her Ministers. The other is that in her Coronation Oath, the Queen promised to govern us and the Commonwealth according to our respective laws and customs. Many feel that those two aspects have been growing steadily more uncomfortable with each other since we joined the European Community in 1972, but that they may be brought into irreconcilable conflict by the treaty of Lisbon and as the European Union develops the powers that it will receive under that treaty.
The first of those positions—that the Queen acts on the advice of her Ministers—is well put in the letter that Buckingham Palace is currently sending out to the large number of people who are writing to the Queen asking her to withhold her consent from the Lisbon Bill, unless it has first been supported in a referendum of the people. I cite the relevant passage from that letter:
“Policy on the United Kingdom's membership of the European Union and the strengthening of relations between Member States is entirely a matter for the Queen’s Ministers and not one in which it would be constitutionally appropriate for Her Majesty to intervene”.
The possible conflict between that tradition and the Queen's Coronation Oath turns on the interpretation of what are “our respective customs”. There are those—I imagine that the Government are among them—who hold that our respective customs include the custom that the Queen acts on the advice of Ministers, whatever it is and from wherever it comes. That is the end of the discussion as far as those who adhere to that position are concerned.
Many do not agree—mostly in our Eurosceptic movement, of course, which now comprises a majority of the British people. They point out that, at the time of her Coronation Oath, the advice that Ministers gave to the Queen was unfettered by our membership of the European Union. They suggest that the British people’s most important custom was that they elected and dismissed all those who made their laws. They say that that is still our most fundamental custom.
However, we have now reached the point where a majority of our national law is imposed by Brussels, on much of which the Government of the day can be outvoted and for which the House of Commons and your Lordships' House have become irrelevant. They fear that that situation will become worse under the Lisbon treaty, which grants the EU its own legal personality superior to that of the member states. They ask: who is and who will be really giving advice to the monarch? Is it her Ministers, or have they become merely the mouthpiece for much of what they propose? They also ask such questions as where the new EU president will leave the position of the sovereign as his role evolves. Will he come to receive ambassadors and sign treaties on behalf of the European Union with its new legal personality? Who will take precedence if the Queen visits the institutions of the European Union? These are the sorts of questions that the report requested by the amendment should seek to answer. We expect the amendment to be supported on all sides of the House. I beg to move.
My Lords, perhaps the amendment is not really necessary after all and should not take too much of your Lordships’ time, particularly after the previous substantial debate. One comes back to the origins of the text, which for good Europeans is sacred. Article 3a(2) of the treaty of Lisbon reminds us:
“The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State”.
Article 3b states:
“The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality”.
Furthermore, Article 2(6) states:
“The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties”.
These are sovereign countries—positive Europeans working together agreeably more closely, as envisaged by the founding fathers, although they were not aware of the future details. We have seen how this has evolved gradually as a process: sovereign countries remaining national sovereign entities and in no way reduced by any co-operation between them on signing the series of international European treaties that brought together the previous two principal treaties of 1957 and Maastricht and have now culminated in the composite Lisbon treaty. I therefore find it difficult, as will other noble Lords, to understand why the noble Lord, Lord Pearson, is worried about this matter. The position of the monarch is in no way affected by our membership of the European Union.
There are seven monarchies in the current list of 27 member states. Of those, I am pretty sure—I speak from memory so I hope that I am right, because it is not always possible to read all versions of Hansard of all the other national Parliaments—that the Kingdom of Spain, which is also armed with more than 1,000 years of history, the King of the Belgians, King Carl Gustaf of Sweden, the Grand Duke of Luxembourg and the other monarchies have no anxiety about this, and I do not think that in any of those national Parliaments a single amendment has been proposed to the Bill that is going through its various stages to enact and ratify the Lisbon treaty. The reason for this strange suggestion is therefore beyond me and, I think, most people.
I recall, too, that Her Majesty and the Duke of Edinburgh paid—
My Lords, it is beyond most people because, as the noble Lord clearly and often makes the point, he and his party do not believe in the nation state. He has just said that they believe in pooled sovereignty. Behind this question is the deep underlying anxiety of the British people about how one can pool sovereignty and maintain democracy. The two are irreconcilable. I hope that he will answer that point.
My Lords, I suggest that the noble Lord simply reads the treaty. It upholds the intrinsic sovereignty of the national state—the national entity. That is repeated throughout the treaty, as it was in the previous treaties. Those things are literally unaffected under international law by the treaty-making experience of history and by the ability of sovereign countries to decide to work together. They lose nothing, even at the margin of their intrinsic national sovereignty. They take sovereign decisions so to do, mostly through their parliamentary machinery—Ireland being the only exception this time, with a referendum on Thursday.
I believe that about 14 years ago Her Majesty the Queen and the Duke of Edinburgh paid a notable and interesting visit to the European Commission and other institutions in Brussels. Although no official report was made—it was a private visit—they were extremely interested, we understand, in these developments, which are a mirror image of the other kinds of international treaties that this country signs with other international bodies and that create ever-larger bodies as the membership of those particular entities increases. But, because of the closeness of working together under the European Union, it can be sometimes misunderstood, quite understandably, by people who have a more sceptical turn of mind such as the noble Lord, Lord Pearson, that that means somehow giving up your own intrinsic power. That is not the case and never has been. It has always been envisaged that these are sovereign member states working together. In fact, robust Parliaments elsewhere have not seen a single amendment proposed reflecting the anxieties of the noble Lord, Lord Pearson, on these matters.
Ultimately, it comes into the realms of Euro myths. I was chairman of the European Movement in Britain when Giscard d’Estaing was chairman of the whole European Movement throughout Europe. I remember vividly how we decided to have a kind of contest whereby people in various member states could submit myth stories that they thought was true, including, for example, myths about straight bananas, blue tomatoes and a wonderful panoply of stories. We remember with great affection the Daily Express headline 20 years ago, “English student killed by German thunderstorm”. The British press has not changed much because it still writes stories like that. According to my contacts with Giscard d’Estaing’s staff in those days, not a single suggestion that was submitted to any national European Movement, or submitted to the British European Movement, by any of the anti-Europeans turned out to be correct. All stories were looked at carefully, including stories about hairnets for fishermen or not carrying condoms on fishing boats. All that rubbish was investigated thoroughly time and time again, and not a single so-called myth story was true.
The heads of state of the republics and the monarchies in the European Union are sacrosanct. They belong to the national entity, which is a national member state fully sovereign in its fundamentals all the way down to the depths of its local political society. That is not in any way affected. I hope that—after the profound debates we had on such an important subject previously and in congratulating, without embarrassing I hope, the Leader of the House on a positive result in that case—this amendment will not be pressed to any suggested vote.
My Lords, notwithstanding the reassuring words of the noble Lord, Lord Dykes, there is great merit in this amendment. I suspect that the Government will argue that ratification of the Lisbon treaty will have no detrimental effect on the constitutional position of the monarch and that the amendment is therefore unnecessary, rather like the noble Lord, Lord Dykes, did. But if they are so certain why do they resist the amendment, acceptance of which would greatly reassure the public who are not reassured at present? It is not as if acceptance would involve expenditure of time or money. This amendment is not remotely in the same league as an earlier one moved also by the noble Lord, Lord Pearson of Rannoch, which sought a cost-benefit analysis of the Lisbon treaty.
Although in my view it was as highly desirable, that amendment, if agreed to, would undoubtedly have absorbed ministerial and civil service time, and would have cost the taxpayer money. In contrast, this amendment, assuming that the Government’s confidence is well placed—that is a big assumption—would require only a one-sentence statement by the Minister to the effect that the monarch’s position is totally unaffected by the passage of the Lisbon treaty and our ratification of it.
To adapt the Government’s stock argument when replying to innocent people who understandably object to having their DNA and their fingerprints maintained on a police file in perpetuity, if the Government have nothing to hide, they have nothing to fear by accepting this amendment. On that basis, let them do so.
My Lords, the noble Lord, Lord Dykes, chided the noble Lord, Lord Pearson, for wasting the House’s time in moving this amendment.He went on to speak for eight minutes as opposed to the noble Lord’s five, so he has no right to chide the noble Lord, Lord Pearson, for raising this very important matter. Indeed, I raised it myself at Second Reading, but I did not get a very satisfactory answer to my questions. Since they have been raised again by the noble Lord, Lord Pearson, perhaps we will get a better answer today. I will not repeat what he has said or repeat my questions.
I emphasise that the constitutional position of the monarch is that he or she acts on the advice of their Ministers. However, in matters concerning the European Union, especially in matters decided by QMV, Her Majesty will not act on the advice of her Ministers, but on advice tempered by the decisions of 26 other countries—decisions that British Ministers might very well have opposed. The advice tendered to the monarch will not necessarily reflect the policy of Her Majesty’s Government, nor that of Parliament. It will be decided by a group of foreign states. That constitutes a significant change in Her Majesty’s relationship with her Government and Parliament.
There is also Her Majesty’s position relating to the Commonwealth. This will now be quite different from her relationship to this country. Presumably she will still be offered advice by her Ministers in the Commonwealth, but that advice will not be constrained by a group of foreign countries. These implications for the monarchy should be explored properly by the Government and explained to Parliament. That is what the amendment asks—no more, no less.
Many will say that the position of the monarch is safe. However, there can be no doubt that, as greater EU integration proceeds, the institution of the monarchy could be seen as an anachronism. Many of our institutions have been undermined or reformed radically in the past 10 years. Hereditary Peers have been sent packing. The role of the Lord Chancellor has been all but abolished and the whole of the office dismissed from the House of Lords. The Law Lords have been ousted from Parliament and a Supreme Court established instead. Now the House of Lords is in danger of being abolished and, only recently, the role of Black Rod was diminished considerably, apparently without any real consultation with Black Rod himself. There have been a lot of changes over the past few years.
Some noble Lords will not believe that the position of the monarch is under threat. However, I remind them of the behaviour and presidential style of the previous Prime Minister. Mr Blair attempted to muscle in on matters that were clearly the proper province of the royal family, and failed to correct the tendency of sections of the press and others to refer to his wife as the “first lady”. Some people notice these things and are offended by them. Furthermore, it seems to me that the police and perhaps even the Armed Forces now believe that their allegiance is to the Government of the day rather than to the monarch.
With all these significant changes, constitutional and attitudinal, to the way that we are governed, it is little wonder that there is concern about the position of the monarchy in relation to the European Union— which, step by step, ratchet by ratchet, is proceeding to full union, a country called Europe. That is why we need this debate and the amendment, which seeks to ensure that the Government report to Parliament on the position of the monarch in relation to Parliament and the people, following the implementation of the Lisbon treaty. Since I have added my name to it, of course I support the amendment.
My Lords, one noble Lord suggested that the Liberal Democrats are against the nation state. That is wholly untrue. On behalf of my party, let me make it clear that our position is, and always has been, that of course we believe in the nation state; of course we believe in the sovereignty of the United Kingdom; but we also believe in sharing sovereignty in the interests of the people of this country. Sovereignty is not like virginity, something that you either have or do not have. Sovereignty is the exercise of powers, which you may do on your own on issues that can be settled at national, regional or local level; or which may demand transnational—European or international—co-operation on issues such as climate change, pollution, terrorism, migration and fisheries. It is the belief of my party, and of many in the Conservative Party—some of whom are in their places today, but whom I will not embarrass by naming—and I believe is the position of Her Majesty’s Government that sharing sovereignty is in the interests of this country and its people.
My second point is in answer to the noble Lord, Lord Monson, who asked, “Why resist this amendment?”. One reason for resisting this amendment is because it is wholly unnecessary. The constitutional position of the monarch in relation to the monarch’s people, Parliament and Ministers, prior to ratification of the treaty of Lisbon and following ratification of the treaty, will be precisely the same. What is that position? The position of the sovereign since 1688-89, and the Act of Settlement 1700, is that we no longer operate a monarchical constitution. We operate under the principle of parliamentary sovereignty or supremacy. The Queen’s Ministers advise the sovereign. The sovereign does not act in her personal sovereign capacity. As a constitutional monarch, the sovereign gives effect to the advice of Ministers who are accountable to Parliament and to the courts. Therefore, whether before or after ratification of the treaty of Lisbon, there will be no change in her constitutional position, nor in her relationship with her citizens or with other institutions of government.
My Lords, the noble Lord made an implied reference to my previous remark about sharing sovereignty, and the consequent loss of democracy. Of course one should share big issues—we have tried to in the United Nations and elsewhere. However, almost all the minutiae of our lives are being dictated by Europe. Currently 80 per cent of our regulations come from Europe and the figure is rising. This is not shared sovereignty, this is giving away sovereignty—and that, if only the noble Lord and his party would realise it, is what deeply worries the British public.
My Lords, I fully understand that concern. However, it is catered for in the treaty of Lisbon. Unlike previous treaties, it makes sure that the principle of subsidiarity, which states that Brussels and the European Union should not legislate or interfere where the matter can be dealt with better at national or local level, is not only a principle of the treaty, but a principle that national parliaments such as ours will, for the first time, be able to take into account. As the noble Baroness will confirm, either in her reply or later, one protocol of the treaty of Lisbon ensures that if both Houses of Parliament consider that there has been overreach in relation to any legislative innovation, then both Houses may send a reasoned opinion objecting to a particular proposal and, if necessary and with the co-operation of the Government, they will have access to the European Court of Justice to seek a judgment that there has been overreach—a breach of subsidiarity. Built into this treaty are new democratic safeguards for our country, people and institutions. There is no dispute that the principle of subsidiarity must be respected. Nor is there any dispute that we are not looking to a new Holy Roman Empire in which there will be a single state of Europe.
My Lords, we are at the Report stage. I shall try to be indulgent, but the noble Lord must not keep interrupting. At the Report stage, a specific question of clarification is quite in order. The noble Lord has the opportunity to make a speech himself, which might be the better way.
My Lords, I can answer that question very briefly. The word “federal” is the most misunderstood term in the English political language; it is widely construed as relating to a highly centralised system of government, whereas as anyone can see in the federal constitutions of, for example, Germany or Canada, it is a system of allocating power to central government and to the constituent parts of that government. The degree of central control depends on the particular system. The European Union system is in one sense a federal system in that there is centralised lawmaking and devolved or decentralised lawmaking. I do not believe in a federal Union that gives most or all power to the centre within Europe. I believe, and I believe this to be true of my party, in an allocation of powers between what is in Brussels and what is in the member states. I also strongly believe in the nation states and the need to preserve their position. There is nothing defensive about that, but it is easy to characterise what I have just said as some kind of betrayal of national sovereignty. That is wholly untrue and I would be the first to leave my party if I thought otherwise.
My Lords, I shall be brief because we have had an interesting debate around issues that are quite broad and I would like to make progress this evening. The amendment is specific and I pray in aid the Constitution Committee. The committee published an extremely good report, to which noble Lords have referred many times in our deliberations, on the implications of the treaty for the UK constitution. The report makes no mention of the role of Her Majesty the Queen for the simple reason that the treaty will have no effect whatsoever on the constitutional position of the monarch. I said this in the closing part of my speech at Second Reading and I repeat now that the position of Her Majesty the Queen is completely unchanged by the treaty. This also means that the status of the Queen as the head of the Commonwealth is in no way changed by the Lisbon treaty. The creation of a permanent President of the European Council also does not affect the status of the monarch in any way. I hope that that gives absolute clarity on why this amendment is unnecessary and can be withdrawn.
My Lords, I am most grateful to all noble Lords who have spoken, in particular those who see the necessity for this report. The noble Lord, Lord Dykes, told us yet again that the EU is a collection of wholly sovereign nations collaborating together. He quoted some words that have been included in the treaties since the start. The general gist of what he quoted has always been with us but has not managed to make any difference to the inexorable secession of our right of self-government to Brussels.
I am particularly grateful to the noble Lord, Lord Vinson, who put his finger on the heart of the matter in responding to the noble Lord, Lord Dykes, and to what the noble Lord, Lord Lester of Herne Hill, had to say, so I will not repeat his words. However, the noble Lord, Lord Lester, said that sovereignty is not like virginity in that you can share sovereignty, and he gave various examples. That is a fundamental point of difference between us. We say that sovereignty is indeed like virginity—you either have it or you do not. People say that we have given it up to Brussels, but we are actually paying Brussels billions of pounds a year to take it. Perhaps that is a separate matter.
The noble Lord, Lord Lester, also claimed that Ministers are still accountable to Parliament and the courts. That relates to the very point that I sought to make. Ministers are no longer wholly accountable to Parliament; they are now accountable for decisions taken, often by majority voting, in Brussels. That is the difference and I suggest that it may affect the position of the monarch, who is our sovereign, and so her position is reflected in our position.
Incidentally, I forgot to mention in my introduction that Her Majesty became a citizen of the European Union at Maastricht, which I would have thought also made some difference. I am grateful to all noble Lords who have spoken in what I think was an important debate to hold, but I do not think it appropriate to divide the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
27: After Clause 6, insert the following new Clause—
“Enforcement of restrictions on jurisdiction of the Court of Justice of the European Union
(1) In accordance with Article 2, paragraph 223 of the Treaty of Lisbon, and subject to the limited exceptions specified in the treaties, the Court of Justice of the European Union shall not have jurisdiction with respect to the provisions in the treaties relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions.
(2) In accordance with the Annexed Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, the Charter of Fundamental Rights of the European Union does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
(3) A court or courts in the United Kingdom designated by the Secretary of State shall have jurisdiction to determine whether a judgment or opinion rendered by the Court of Justice of the European Union is or is not in conformity with subsections (1) or (2).
(4) If a court is satisfied that the judgment or opinion is not in conformity with subsections (1) or (2), it may make a declaration of that non conformity (“a declaration of non conformity”).
(5) Any judgment or opinion which has been subject to a declaration of non conformity shall not be binding in the United Kingdom and shall not be treated as a decision to which the provisions of section 3(2) of the European Communities Act 1972 applies.
(6) In this section “the treaties” means—
(a) the Treaty on European Union signed at Maastricht on 7th February 1992 (as amended by the Treaty of Lisbon), and(b) the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon).”
The noble Lord said: My Lords, in Committee the other day I supported the noble Lord, Lord Waddington, on an amendment that was broadly drawn but which reminded the House of the powers of this Parliament. It was criticised for rather lacking focus, but it gave me a chance to refer to how some other member states handle problems concerned with the scope of the powers of the institutions of the Union. Today, I have a sharp focus by concentrating on two powers to be denied to the European Court of Justice by, in one case, the treaty—no jurisdiction in relation to the common foreign and security policy, subject to specified exceptions—and, in the other case, by the Charter of Fundamental Rights, backed up by a specially created protocol saying that the rights referred to in the charter cannot be used to strike down legislation and practices in the United Kingdom. I do not need to give noble Lords the references because they know where they are—in the treaty in the first case and in the protocol in the second. My amendment tracks the language of those two treaty provisions. I say that because the protocol is declared to have the same force as any provision in the treaty.
The noble Lord, Lord Dykes, is no longer in his place, but the focus that I want to start with begins with him. On 9 December last year, he put a question to the Minister for Europe, Mr Jim Murphy, which is set out in the report of the European Union Committee, in the second volume of evidence on page S73—I see that the noble Lord, Lord Grenfell, is not with us, either. To strip the question down, it was, “Are you content with the actual text in the treaty as laid down about the expansion of the Court’s functions?”. Mr Murphy answered:
“In general, in the Treaty and the text we are content with the powers, remit and competence of ECJ. The significant areas we were keenest on was the relationship between the ECJ and CFSP and that is clear, and perhaps it could be argued that it just confirms what happens at the moment but it confirms in Treaty text that there is no role for the ECJ in terms of Common Foreign and Security Policy, and that was important for us”.
I pause at this point to draw attention to the fact that our European committee picks up that passage and quotes part of it in the first volume of the report, at paragraph 4.155 on page 75:
“The Minister for Europe told us that the Government had been particularly keen to ensure that the relationship of the CJEU to the Common Foreign and Security Policy was clear, and welcomed the fact that the Treaty ‘confirms … that there is no role for the ECJ in terms of the Common Foreign and Security Policy’ … that was important for us”.
In answer to the noble Lord, Lord Dykes, at question 280, the Minister for Europe told the Select Committee that the other significant area where the jurisdiction of the European Court of Justice was dealt with,
“was on the Charter of Fundamental Rights and ECJ competence. Those were the really significant in principle protections that we were looking for”.
In my amendment, I focus rightly or wrongly on the two provisions about the exclusion of jurisdiction on which the Government had the strongest views. That is quite clear from the Minister’s oral evidence.
The noble Lord, Lord Grenfell, who was in the chair, proceeded to put his own questions. First, he asked,
“what, if anything, does the Protocol add to the horizontal clauses in the Charter?”.
Secondly, he asked whether the Minister would,
“accept as inevitable the ECJ over the course of time developing jurisprudence in the field of fundamental rights by reference to the Charter and that this might in the long run undermine the Government’s ‘red lines’?”.
The essence of the answer from the Minister was:
“We are very clear indeed both politically and legally as to where we are”.
I shall return to the word “legally”. He said:
“There is an acknowledgement, or perhaps acceptance … across Europe that the Charter in and of itself does not create any additional new rights”.
Then, in answer to the noble Lord, Lord Grenfell, he said:
“There were specific concerns in the UK that also existed in Poland and we sought to address those concerns … about future competence creep of the ECJ in developing jurisdiction through case law elsewhere relying on the Charter. We wished to put it beyond any doubt whatsoever and that is the purpose of the UK and probably the Polish Protocol on the Charter of Fundamental Rights … The horizontal articles do confirm that the Charter cannot expand any of the EU’s powers at all. If you like, more colloquially put, it is a belt and braces approach. We are very clear, and all other countries are very clear, that the Charter does not create new rights, that is the belt, and the braces is we have got a Protocol for the avoidance of any doubt”.
I move on from what the Minister told the committee and take the House to a speech that the noble and learned Lord, Lord Goldsmith, made in January at the British Institute of International and Comparative Law. I declare an interest. I have been a member for some time. I think I am probably on the council. The last chairman was the noble and learned Lord, Lord Goff of Chieveley, and I think that I am right in saying that the current president or chairman is the noble and learned Lord, Lord Bingham of Cornhill. Academically, it is an extremely distinguished body. The attention of the House is drawn to this lecture because it is specifically referred to in paragraph 5.102 of the Select Committee’s report, where the reference is given. The paper was given on 15 January this year. The typical audience would have been judges, law dons, professors, barristers, solicitors and law students.
The noble and learned Lord, Lord Goldsmith, said that he had been involved with the charter since 1999. He had been asked by the then Prime Minister to be one of the draftsmen drawing up the charter and this list of rights. He said that that was a taxing job, which took much longer than he thought. The aim of drawing it up was visibility. The draftsmen were not then thinking of it in terms of it being a legally binding document. They wanted the various rights, which were scattered in conventions and other odd places where we were party to provisions that accorded rights, to be collected together in one place. However, no new rights were to be “minted”—that was the word used by the noble and learned Lord.
After a year and a half, the Council, the Commission and Parliament “solemnly proclaimed” the charter as a political text—no legal status then. Time rolls on a little and we come to the constitutional treaty and the Lisbon treaty, when there was a move to give legal status to the charter. The Government insisted that the horizontal clauses should be strengthened. That was agreed and was done, but something more was needed for specific application to the UK. The noble and learned Lord, Lord Goldsmith, said in his lecture:
“However, going into the Treaty negotiations it was clear that some within the UK still needed reassurance about the possible effects of a legally binding Charter—particularly with regard to protecting UK law. The negotiations at the June European Council and subsequent Intergovernmental Conference provided Government with the opportunity to bolster the existing safeguards and set in stone how the Charter will operate in the UK, as in all Member States”.
Notwithstanding all this care to create safeguards and notwithstanding the existence of the belt and braces, is it conceivable that the jurisdiction of the ECJ could trespass into the forbidden zone? Could there be what Mr Jim Murphy, the Minister for Europe, called a “competence creep” in the jurisprudence of the European Court of Justice?
I come back to Mr Jim Murphy being questioned by the noble Lord, Lord Grenfell. At question 284 on page S75, the noble Lord said:
“We had a former judge of the European Court before us here giving evidence and he rather charmingly said that they do not do propensity in the European Court, which is to say that there was not a propensity to get more and more proactive, but at the same time we were left with the clear impression that the Court will develop considerable jurisprudence in the years to come and that one of the sources of that jurisprudence will be the Charter. Therefore, even though the Charter itself will not be creating any new rights, the European Court’s jurisprudence will in fact be leaning very heavily in some instances on Charter rights”.
In response, Mr Murphy said:
“On that basis, of course, my Lord Chairman, the UK Protocol in that scenario, contrary to what has been suggested, would be significant on the basis that the Protocol is clear that no right can be derived from reliance upon a text of the Charter or the rights contained within the Charter, no new EU rights can be extended as a consequence. That is the purpose of the Protocol”.
The noble Lord, Lord Grenfell, said:
“We will see if that turns out to be the case and time will tell”.
The noble Lord, Lord Kerr of Kinlochard, who is not in his place any more, intervened to say that the version of the charter rights that the European Court of Justice had been citing did not contain the horizontal clauses. I rather think that he meant that the charter rights did not contain the clauses in the form in which we now have them, as they have been in since 2000. In his opinion, the protocol was unnecessary and he said that there was no reason to fear what he called,
“a constructive interpretation by a dynamic Court”.
However, we know as a fact that the Government did not act on that view. They thought that the protocol was necessary and persuaded the other member states to sign up to it.
Let us suppose that the unexpected or the remote happens and that the European Court of Justice, at some time in the future, uses an interpretation of the charter that it has adopted to strike down rights in United Kingdom legislation. It may be difficult for your Lordships even to think about that, but suppose that there were some creep into this area. What would happen? The best guide to that is the advice that we have from the lecture given by the noble and learned Lord, Lord Goldsmith. I am now turning to the end of it; I have got to page 24. The earlier part is narrative; it is about the part that he played and how he was concerned with the original drafting, then with the protocol and with the horizontal clauses. Then he has this heading in his lecture: “What if the Charter is used to create/extend rights?”. He said:
“Despite the inclusion of these clear and binding safeguards, I have been asked what would happen if the safeguards don’t work and the Charter is used to create new rights or extend existing rights. I cannot foresee how the Charter could be used to create new rights. Were I still a politician I would simply, and rightly, say that I do not comment on hypotheticals. But in this more learned environment I am free to be more speculative”.
I hope that your Lordships appreciate that. He continued:
“Were the Courts to disregard the clear provisions in the horizontal articles and Explanations and seek to conjure new or extended rights out of the Charter, then the UK’s Protocol would indeed have teeth. It is after all a legally binding Protocol with exactly the same status as the treaty provision which gives the Charter legal effect. As such neither the ECJ nor UK courts would be able to rely on such expanded, and I would consider exorbitant, interpretations of the Charter to strike down national laws and practices or require the UK Government to change its national law and practices. In such remote circumstances the Protocol would indeed become an opt-out. That would mean that there was a non-uniform application of uniform Union law. But there are plenty of examples of the variable application of Union law—whether by virtue of opt-outs, derogations or whatever— which are permitted or required by the Treaties themselves. Such would be the case here. But I stress again that this is entirely hypothetical. The guarantee that the Protocol represents in this regard would only kick in in the circumstances where the clear safeguards in the Treaty of Lisbon and Explanations were ignored. I can not see that happening”.
The noble and learned Lord is clearly saying that, if the unforeseeable, very remote, actually happened, such a judgment—this is how I interpret it, although noble Lords can place their own interpretation on the words—by the ECJ, adopting what he calls an “exorbitant” interpretation, would not be binding.
My Lords, the noble Lord refers to exorbitant interpretations by the European Court of Justice. Would he not agree with the reply given to me a week ago by the noble and learned Lord, Lord Slynn, that if the Council of Ministers and the Parliament thought a policy interpretation by the European Court of Justice was not what it had meant, they would be able to change it? The noble and learned Lord added that that was the way that the procedure would work; there was no question of running amok. That was how it worked when he was president. We live in a democracy. That is what would happen with regard to the European Court of Justice. It happened in Britain with the Taff Vale judgement and the Trade Disputes Act 1906. Reversing it takes exactly the same logic. Does the noble Lord not accept that?
The noble and learned Lord, Lord Slynn, is here, my Lords, and he can respond. My experience would be that, once the court has given a judgment, it does not go back to its debating room and say it has made a mistake. There have been cases where it has looked again at a judgment but that is very rare. I do not think the Taff Vale case would be as good a precedent as the noble Lord supposes. I think that he mentioned that the other day.
The Minister is telling us that the European Court of Justice cannot rely on the charter. He refers to the protocol being invoked then and says that we are very clear legally as to where we are. He also said that there was a legal answer if the European Court of Justice moved into this unexpected territory. One is, perhaps, entitled to infer that the Minister knew something of the views of the noble and learned Lord, Lord Goldsmith; the noble and learned Lord is now with us, so we may have the benefit of his comments on this topic.
The idea of having different decisions in different parts of the EU, the variable geometry, is clearly contemplated in what the noble and learned Lord, Lord Goldsmith, was saying. May I give the legal argument, as I see it, as to why the UK would not be bound by a judgment of the European Court of Justice if rendered outside its jurisdiction? By the treaties, there is a transfer of competence to the Union within defined limits. That can be found in the EU treaty in the consolidated volume at articles 4.1 and 5.1 Here we have an express provision that jurisdiction is not conferred—it is a negative—as regards CFSP. We also have a bar on using the charter to create new rights or extending existing rights. That is the combined effect of the horizontal provisions and the protocol.
Under Article 19.1 of the EU treaty, the ECJ is bound to ensure that in the interpretation and application of the treaties the law is observed. Part of the law is the agreement on member states recorded in the treaties which clearly state that there is no jurisdiction in these two areas.
In my speech the other day I referred to Germany and Denmark; I will not weary your Lordships with repetitions but will give the reference and the key sentence. I referred to the Brunner case in Germany and the Rasmussen case in Denmark. I quoted from the last sentence of the Brunner judgment:
“Accordingly the Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them”.—[Official Report, 14/5/08; col. 1094.]
In Germany, the supreme constitutional court reserves the right to look at instruments and see whether they—
My Lords, I am sorry to interrupt the noble Lord’s important speech, but I need to remind the House of the conventions in debates—which are what we consider this to be for these purposes. There are no formal time limits. Members opening or winding-up from either side are expected to keep within 20 minutes. I know the noble Lord had an interruption, but I wonder if he could begin to bring his remarks to an end.
They are coming to an end, my Lords. I thank the Minister for his prompt.
Regarding the Rasmussen case, Denmark’s top constitutional court said,
“Danish courts must rule that an E.C. act is inapplicable in Denmark if the extraordinary situations arise that with the required certainty it can be established that an E.C. act which has been upheld by the European Court of Justice is based on an application of the Treaty which lies beyond the surrender of sovereignty according to the Act of Accession. Similar interpretations apply with regard to Community law rules and legal principles which are based on the practice of the European Court of Justice”.—[Official Report, 14/5/08; col. 1095.]
That is the Danish court saying that it will review.
I think I might be allowed to say something about Poland because I was cut short on the last occasion, unless the noble Baroness, Lady Ashton, is unwilling to permit that. The source is quite interesting. All this material is elementary; it is in a student textbook by Professor Trevor Hartley, who is a professor of international—
My Lords, I just want to be clear that it is not within my gift to give permission or to withhold it from any noble Lord. However, if the noble Lord will look at the expression on the faces of noble Lords around the House, he will see a desire—
My Lords, I shall make my citation as quickly as possible. I was cut short last time at exactly the same point when the noble Baroness said, “Stop when you get to Poland”.
The source is in the sixth edition of Professor Hartley’s book on European Union law. It is a reference to a website with summarised translations of the Polish judgments, so you do not get the ipsissima verba and thankfully the judgments are in English. The principal reasons for the ruling they gave in a case where Danish parliamentary deputies challenged accession to the EU treaty were as follows:
“The communities in the European Union function in accordance with treaties establishing these organisations on the basis of, and within the limits of, the power conferred upon them by the member states. Consequently, the communities and their institutions may only operate within the scope envisaged by the provisions of the treaties”.
I will not read any more, but it says the same thing about the Court of Justice. It can only operate within the limits, and the court in Poland can review it to see if the limits have been adhered to.
My amendment directly supports the Government’s red lines. It is in accordance with views held about the law in other member states. I propose in subsections (3) and (4) of the amendment that we should handle the situation, if it ever arises, in an orderly manner and have the matter referred to an appropriate court. I suppose that that would be the Supreme Court in England and Wales, when it is up and running. I will not venture to say what it would be in Scotland; I see the noble and learned Lord, Lord Mackay of Clashfern, who would no doubt know which would be the best court to handle it. I have not given Northern Ireland any consideration. However, there should simply be a procedure whereby the issue goes to the top court, and rules should be in place, as there are with judicial review, as a filter to chuck out bogus cases.
I apologise for taking so long but this is an important issue which I have never heard debated in this House, although I may have missed something: what do you do if the limits of jurisprudence, the boundaries of the court, are transgressed? I beg to move.
My Lords, I speak to Amendment No. 28, which is not germane to what the noble Lord, Lord Neill of Bladen, has been saying; nevertheless, I must deal with it in this way. I can deal with it telegraphically, largely from a quotation from the Constitution Committee report of 28 March.
First, however, as to Amendment No. 27, on 29 April—the second Committee day of the Bill—we tabled an amendment about the charter. That led to a long, but nevertheless informative, debate. Our point was not so much about the flagrant breach of the protocol as a consequence of a European Court of Justice decision, but the much more insidious danger of European Court of Justice interpretations of measures which were already applicable in this country, made as a result of litigation in other member states, changing the law here.
The noble Lord, Lord Neill of Bladen, poses a serious problem and his solution is attractive. However, it would be a remarkably bold judgment, even by the European court, to breach so flagrantly the terms of the protocol, which expressly refer to “no further extension rights”. That expression is clear. If the court were in breach of that and extended rights in the United Kingdom as a result of interpretations of the charter, then the solution of the noble Lord, Lord Neill, would be—to me, at any rate—a good one. However, I would be surprised if we were ever faced with those circumstances.
Our problem is a more subtle and insidious one, resulting from the slovenly way in which the Government negotiated this protocol in the course of the treaty negotiations. It is clear that the charter applies in this country unless it is cut down by the terms of the protocol. The flaw of the protocol lies in its preamble, which says that the protocol is expressed to be,
“without prejudice to other obligations of the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally”.
The point was not originally made by me from this Dispatch Box—one would certainly not have expected that anyway—but emerged in the course of the Committee examining the Bill in another place. It rightly pointed out that, in the context of the charter, the interpretation by the European court of measures which apply to all European Community member states, including this country, as a consequence of litigation emerging in other member states, would apply in this country even if they extended the interpretation in such a way that changed the law here. That flows from the way in which the preamble was negotiated. As the committee in another place said, it would have been so much better if, instead of the words,
“without prejudice to other obligations”,
the protocol was expressed to have effect “notwithstanding”,
“other obligations of the United Kingdom”.
The fact that the Government failed to do this means that that those red lines are not watertight.
I hope that the Government accept Amendment No. 28. It requires them simply to undertake a reporting obligation. The Constitution Committee’s report of 19 March rightly reflects what has been said in a number of debates in your Lordships’ House: that probably the most worrying consequence of the treaty of Lisbon is how the scope of the European Court of Justice has widened to cover so many more competences. In effect, the only one likely to be left untouched by the European Court of Justice is that of security and international relations. In particular, the committee points out, whole tracts of justice and home affairs that previously were excluded from the jurisdiction of the court now fall within it. The Constitution Committee’s recommendation is in paragraphs 122 to 124, and I conclude my observations by quoting them. They succinctly make all the points that I would have wanted to make:
“Many of the issues we have examined in this report—including the competences of the EU, the interpretation and application of the Charter, the detailed working out of the consequences of the UK opt-outs and opt-ins (particularly in relation to the area of freedom, security and justice)—will be shaped by the European Court of Justice’s adjudications in the years to come. Insofar as the European Union is an organisation based on the rule of law, there can be no complaint that this is so, even if from time to time the developments introduced have taken Member States by surprise.
In order for Parliament to be fully informed of the European Court of Justice’s interpretation and application of the Lisbon Treaty provisions, we recommend that the Government lay before Parliament an annual report on their assessment of the impact of the Court’s rulings on the United Kingdom. In interpreting and applying the Charter, the European Court of Justice will increasingly refer to the case law of the European Court of Human Rights and so the relevant rulings of that court ought also to be covered in the Government’s annual report.
The provision of such an annual report would complement Parliament’s efforts in recent years to seek greater information about the operation of the United Kingdom’s courts through, for example, the requirement of the Constitutional Reform Act 2005 for the Supreme Court to make an annual report and the Lord Chief Justice’s proposed regular reports on the court system in England and Wales”.
The Government, in a speech by the Leader of the House this afternoon, have expressed their intense interest in deepening the scrutiny of European matters. Why on earth should this not be seen as a further constructive contribution to that process of deepening and will the Government please accept this amendment?
My Lords, I support both amendments but I hope that the Official Opposition will not push their Amendment No. 28 to the vote but will support a vote on the extremely interesting and important amendment tabled by the noble Lords, Lord Neill of Bladen and Lord Waddington.
I notice that the former Attorney-General is in his place. I had not before read the very interesting speech that he made on 15 January 2008. In dealing with the charter, he summed up the Government’s position. I totally agree with him but his words are very important. He said:
“The aim was not to deny the importance of fundamental rights, but precisely the opposite: to prevent them being confused or diluted or the status of the European Convention on Human Rights and of the Strasbourg Court downgraded by the introduction of a rival set of rights”.
I believe that is a serious and valid objective. It has been a very important decision to make the European Court of Human Rights charter justiciable in this House. I would have liked to have done it in 1978 when an attempt was made inside the Labour Cabinet. Despite a lot of alarmist predictions, it has withstood pretty well the passage of time.
It is rather selfish of us to deny those new states in the European Community which may not have been involved in the European Convention on Human Rights for very long, or not at all in rather more cases, their own home-grown fundamental rights. I do not cower from the fact of introducing fundamental human rights but I think the points made by the noble Lord, Lord Neill of Bladen, are extremely important. We know that there are people who want to replace the European Convention on Human Rights with the charter of fundamental rights and there are people who want to expand the wording. We therefore do need safeguards. The interpretation put on the speech of the noble and learned Lord, Lord Goldsmith, is a fair one. I am sure he will leap to his feet if he thinks there has been any misinterpretation of his words. He made it perfectly clear that he thought there would be no change in the protocol, a point which was also made by the spokesman for the Official Opposition. This is not good enough. We have an opportunity here to make sure that there are no changes. We know that there are serious people out there who have anxieties about this treaty.
I would like to take up a little more time of the House on the other aspect of this amendment that deals with the common foreign and security policy. Here I call in aid a very interesting memorandum by Professor Takis Tridimas of Queen Mary, University of London, to the Sixth Report on the European Union (Amendment) Bill of the House of Lords Constitution Committee. In that evidence he says:
“Under the Lisbon Treaty, the Court’s jurisdiction continues to be excluded from matters falling under the Common Foreign and Security Policy”.
We have heard that very often in this debate.
“Such exclusion applies both with respect to the provisions relating to the common foreign and security policy and ‘with respect to acts adopted on the basis of these provisions’. It is not clear whether this provision excludes jurisdiction only in relation to acts adopted wholly under the CFSP or also in relation to acts adopted under a dual legal basis ie based both on the CFSP and another Union policy, for example, freedom, security and justice”.
In my view it is quite likely that that is the area where we must focus our attention. He goes on to say:
“Such dual basis may be used, for example, for anti-terrorist measures. Since restrictions on the right to judicial protection are to be interpreted restrictively, it is more likely that the ECJ will be willing to review measures based partly on CFSP”.
There is again here a potential loophole and the amendment tabled by the noble Lord, Lord Neill of Bladen, closes that loophole as far as it is possible to do so.
I have already pointed out that the other loophole is that the activities of the new President of the European Council will come under the jurisdiction of the European Court of Justice. Since the bulk of the activity of the President of the European Council deals with common foreign and security policy, particularly in areas where it may link into terrorism, it is in that area that some of us feel that there needs to be some restriction on the authority and the legality and its follow-through for the president of the Council. This new post is unfettered other than by the Council Members. If the European Court of Justice was to use this as another lever, that possibility would be closed and limited by Amendment No. 27. I hope the House takes the opportunity of having this on the statute book. As far as the Government are concerned, it seems to me the very minimum of a belts-and-braces safeguard.
My Lords, the noble Lord, Lord Neill of Bladen, very helpfully went into a great deal of detail. In support of his amendment, I would like to try and refine the issues. In essence they are quite simple. The Government wish to limit the jurisdiction of the European Court when it comes to the charter of fundamental rights and to exclude it entirely in the area of foreign and security policy. They say that the protocol and the opt-out are necessary in Britain’s interests but plenty of very knowledgeable people have said that neither the protocol nor the opt-out is watertight. I am not going to rehearse in detail what has been said by the Commons committee, Open Europe and other bodies, but I would remind your Lordships that the EU Committee of this House says at paragraph 5 of its report:
“The interpretation of the protocol is a matter for the courts and … we do not think it is possible to predict precisely what the courts would decide if faced with the task of interpreting the Protocol’s language”.
You can say that again.
It is also interesting to note that paragraph 7.40 of the impact assessment records:
“Open Europe expressed scepticism that the Court could be kept out of the CFSP, submitting that the extent of the [ECJ’s] jurisdiction over areas within CFSP remains unclear”.
The relevant passage in the evidence is C39, and it is plain from that evidence that Open Europe is not alone in taking that view. So the question arises of what happens if the European Court determines that the protection Britain thought she had won, and the protection that the other member states thought they had given Britain, simply does not exist. Some in this place seem to say that there is only one answer, “Bad luck Britain. The court is supreme and master of its own jurisdiction. Sorry, Britain, but the court has concluded that you were sold a pup”. The noble and learned Lord, Lord Slynn, even went so far as to say:
“There is no way that a regional system of justice can avoid accepting the principle of uniformity”.—[Official Report, 14/5/08; col. 1057.]
The use of the word “regional” slightly grated with me. It is hardly encouraging and throws light on the cast of mind of some engaged in the European project, but I shall pass over that. The point is that those remarks made by the noble and learned Lord, Lord Slynn, were a prelude to his conjuring up a picture of chaos which he thought would result if each country’s court could place its own interpretation on European law. But where is the risk of chaos when we are not talking of every country claiming the right to disagree with the Court’s interpretation of a law properly passed but about what is to happen when the Court claims jurisdiction in an area where every country has decided at the time of ratification of the treaty that it has no business in that area?
Judging by his speech on 15 January, the noble and learned Lord, Lord Goldsmith, does not seem to think that if the European Court was to conjure up new rights under our charter, our courts would have to apply them. Therefore, this amendment is designed to make plain that if the European Court of Justice tries to bite into the protection from its jurisdiction which the treaties have tried to afford, and which every member state has agreed to, a court in this country can rule that any such judgment or opinion will not be binding in the United Kingdom. It is really a matter of belt and braces and a reinforcement of the protection the Government say is necessary, the protection which the Government have tried to procure through the protocol and the opt-out. How on earth can that be bad?
I shall not repeat what the noble Lord, Lord Neill of Bladen, said about Poland and Germany except to pose the question: why should the United Kingdom not assert in the same way as Germany and Poland have done that it has the right to judge whether the ECJ has gone beyond the four corners of the treaties? I am happy to support the noble Lord’s amendment.
My Lords, I shall speak against Amendments Nos. 27 and 28. There are always questions of the interpretation of statutes at all levels from the international, such as the EU, down to local authority powers. However, we cannot legislate here in the expectation that the European Court of Justice may become entirely irrational or deliberately misinterpret EU legislation or EU treaties. As those who listened to the remarkable speech of the noble and learned Lord, Lord Slynn, on 29 April during the second day of the Committee stage will have appreciated, this really is not the case. The ECJ will not become irrational, nor will it deliberately misinterpret EU legislation in order to extend its own powers. We cannot, and must not, legislate on that basis.
Amendment No. 27 seeks to introduce a new clause, subsections (1) and (2) of which simply restate, accurately enough, the relevant provisions of the Lisbon treaty. Subsection (1) relates to the jurisdiction of the European Court of Justice over the common foreign and security policy, the CFSP. Subsection (2) relates to the jurisdiction of the ECJ in relation to the Charter of Fundamental Rights. It seems that these provisions are intended to apply only if a case has been decided by the European Court of Justice to the disapproval of those in this country who take a different view. The amendment has technical defects. First, it is not clear whether the jurisdiction under the new clause can be exercised only if an issue has been raised in a hearing before the European Court of Justice about the extent of its powers, or whether it can be raised under subsection (3), even if no jurisdictional issue was raised before and decided by the ECJ. Secondly, it is not clear who can raise the issue in the United Kingdom or how they can raise it.
However, even without these defects, which no doubt would be capable of being cured, the amendment is much more deeply and fundamentally unsatisfactory. It is a basic rule of a legal system that a court decides on the extent of its own jurisdiction in accordance with the rules and laid down by statute and precedent. That decision is binding unless it is reversed on appeal by a higher court. It is plain that no court in the United Kingdom is a higher court than the ECJ. On ECJ matters, it is obviously the other way round. That is why, for example, if a serious question of European law arises in a case before the House of Lords or a lower court in the United Kingdom, that question must be referred to the ECJ for decision. That decision binds all the courts in this country, including the House of Lords, or the Supreme Court, as it will soon become.
The reasons for this are obvious. Only the ECJ can give a decision which is binding on all the member states. Any decision by the House of Lords will be binding only in this country. A similar situation applies as regards any decision by the courts of any country from Cyprus to Portugal. An impossible situation would arise if 27 national supreme courts could give a different interpretation to EU treaties. That is plainly obvious as regards decisions on the CFSP covered by subsection (1) of the amendment. We cannot have different meanings attributed to the CFSP by different states. At first sight this may be less obvious in relation to subsection (2) of the amendment, which repeats Article 1, paragraph 1, of the protocol, which applies only to the United Kingdom and Poland. However, the question here is: what does Article 1, paragraph 1, mean? It is a negative provision which states that the powers of the ECJ are not to be extended. Therefore, we have to start with a decision by the ECJ that has not extended its powers, either actually or by implication, and that the decision is being challenged in proceedings in the United Kingdom. If the United Kingdom court has power to decide that the ECJ has exceeded its powers, and that the decision of the ECJ must be ignored, one is allowing an inferior court to override a superior court. That is not relevant just to what happens in the United Kingdom. A decision on what are the existing powers of the ECJ taken by the ECJ itself will affect all EU member states.
The preamble to the charter says that it reaffirms rights; it does not say, and we all agreed on this, that it extends them. Any decision by the United Kingdom court that the ECJ had extended its powers would involve the interpretation of what those powers are not only in relation to the United Kingdom but in relation to all states, subject to the charter. That must be a decision for the ECJ and not for the United Kingdom court because if it is the other way around, we end up in the same position, that the supreme court in each independent state within the EU can decide the existing powers of the ECJ.
The motive behind this amendment seems to be the belief that the ECJ will consciously use its powers to reduce the powers of the UK courts and to increase those of the ECJ by means of decisions which are plainly inconsistent with its powers under the EU treaties. That should—although I doubt if it will—put to rest what I regard as the essentially paranoid views of some opponents of the Bill about the way in which the ECJ works. It is not an organisation which will deliberately set out to impose its own views on the EU as a whole. It can, and surely will, as it has in the past, operate on the basis of a proper, serious and thought-out view, assisted by the Advocate General who is a figure of considerable power, about the questions that come before it.
I now turn to Amendment No. 28. This amendment is considerably less harmful—
My Lords, before the noble Lord turns to Amendment No. 28, would he not admit that the British Government have been very surprised on several occasions over what they regarded as the judicial activism of the Luxembourg court? I give him, for instance, the occasion when the British Government thought they had signed the Maastricht treaty and were not part of social policy, and the court turned around and agreed that social policy was part of health and safety at work so we got the 48-hour week.
There is also the use of Article 308 of the treaty of Rome, which the court has decided does not have to be in the course of the operation of the Common Market as it should be, but very much wider. There are many examples of this, so perhaps we are not so mad to be worried about it.
My Lords, I am aware of the case in which the ECJ, somewhat to the surprise of the British Government, applied health and safety rules in order to impose legislation on this country. That is certainly true. However, I am in no way saying that that decision was in any way irrational. It seemed to me to be a perfectly rational decision. It was unexpected by the Government—perhaps they did not receive proper advice from their legal advisers at the time.
However, there are, of course, varied circumstances. Anybody who has any practice in front of a court is well aware that decisions will be taken which they believe are wrong. That does not mean there is anything improper about that or anything that can, or should, be guarded against. The ECJ is no more perfect in its decisions than the House of Lords in this country, for instance. But that is an entirely different matter and it does not undermine the idea that member states of the EU should accept decisions whether they like them or not.
I return to Amendment No. 28. It is less harmful than Amendment No. 27, but no more useful. The requirement is to lay before Parliament a report setting out the text of ECJ judgments on provisions of the treaty of Lisbon. It does not really deal with the problem that the noble Lord, Lord Kingsland, raised at the beginning of his speech.
The reports and decisions of the ECJ would of course be available, without the necessity for a report by the Government, to anyone who wanted to read them. The amendment requires that the report will also contain an assessment of the impact of decisions on the United Kingdom. The United Kingdom is already awash with impact assessments from several different sources. Those who want to believe the Government will do so; those who do not want to believe them will not. The Government may well wish to lay an impact assessment before Parliament, but it is surely a waste of time and money to require that at annual intervals. The amendment ignores the ability of the EU Committee of your Lordships’ House and other Select Committees to carry out their own investigations which may be more highly regarded than something produced by the Government.
Further, the amendment ignores one important fact which is that the treaty of Lisbon will, in effect, cease to exist the moment it comes into force because it consists entirely of amendments to existing treaties. The elements of the Lisbon treaty and of earlier treaties will, therefore, be merged. There are some aspects, such as the Charter of Fundamental Rights, which are plainly introduced by the Lisbon treaty. But in many cases, it will be difficult, if not impossible, to decide whether an ECJ judgment is a judgment on amendments introduced by the Lisbon treaty, and civil servants will have to waste time considering that.
The amendment goes further still and requires judgments of the European Court of Human Rights which affect provisions of the Lisbon treaty—not the treaty as a whole—to be set out in the report alongside the judgments of the ECJ. I cannot imagine what useful purpose could be served by putting that provision in the Bill.
I cannot believe that the noble Lords whose names are on this amendment take it particularly seriously. It seems to be one which serves no useful purpose and should not be taken any further.
My Lords, I would like to speak briefly in favour of both these amendments which follow on from some issues raised in an amendment I tabled in Committee. In particular, I will address the issue raised in relation to the Charter of Fundamental Rights. Article 1 of that charter offers the protection that the charter cannot be used to extend the ability of the ECJ to find that laws and regulations of the UK are inconsistent with the charter.
The problem is that it does not specify who has the authority to say whether or not it extends the ability of the ECJ. But it is clear that under this treaty the ECJ would, unless otherwise stated, have that ability to decide whether its decisions extend to the law of the UK. As the committee of this House made clear in its report, there is a strong point of view that the reason the Charter of Fundamental Rights is held not to be important is that it does not extend to the law of the UK because it is based on other international agreements. That is the case being put forward for why it does not have a significant effect. Therefore, it is entirely possible that the ECJ will conclude that any decision it makes based on the Charter of Fundamental Rights does not, by definition, extend to the law of the UK. It is then up to the ECJ how it will interpret the charter, on the assumption that it does reflect the UK laws.
There is a further problem which is that the introduction to the protocol makes clear, as we have discussed, that the charter contains provisions which are civil and political in character as well as those which are economic and social. So we have the possibility of the ECJ deciding that in interpreting the charter it is not extending the law of the UK and then making its judgment on issues that are political and social.
You do not have to believe, as the noble Lord, Lord Goodhart, suggested, that the ECJ would be irrational or deliberately misleading to interpret political and social matters in a different way from a UK court. As a result, as the treaty stands, it is perfectly possible that you could have judgments made by the European Court that it claims do not extend UK law and applying its interpretation under the charter of social and political issues. The ECJ is not absolutely a superior court; it is only a superior court on those issues on which it has jurisdiction. The whole question here is whether it has jurisdiction on these issues and interpretations.
The amendment proposed by the noble Lord, Lord Neill, puts beyond doubt that UK courts should decide on the extent of UK law and whether a measure extends UK law. UK courts should decide on the interpretation of the political and social issues that are covered in the charter. If the Government object to that, they have a difficult case to make the people of the UK.
My Lords, I start with an apology to your Lordships that I was not present at the beginning of the debate and that, up to now, I have not taken any part, although I have followed the debates closely. I am afraid that my new responsibilities have kept me away from the House more than I would have wished. I also apologise to the noble Lord, Lord Neill, because I came in part way through—indeed towards the end of—his speech in which he moved the amendment. I would not rise to speak but for the fact that what I said in a particular speech has been much relied on by him and by the noble Lord, Lord Owen. I thought that I owed it to your Lordships to explain what I was trying to say, in the hope that that will help noble Lords to reach a view on the amendment.
I arrived just a moment or two before I came into the Chamber and was told that the noble Lord, Lord Neill, was referring to me. Gratified, I rushed into the Chamber, only to find the noble Lord, Lord Kingsland, describing something that I had had something to do with as slovenly, so perhaps I should have stayed away.
I want to say two or three things that I hope are relevant to your Lordships’ considerations. I know that today is not the occasion to go into the history of the charter in any depth. At one stage, it became my special subject, because I had the job, on behalf of this country, of negotiating the charter, before I took office in the Government. There are two critical things about the charter. First, the charter was never intended to be applied directly to member states in dealing with those matters that member states have the competence to deal with. It was always intended to constrain the European Union institutions. The reason was relatively simple: by this stage, the European Union, having started off as an economic union, had gained more and more powers. How could it be, when each member state was constrained by constitutions, or by the Human Rights Act, or by the European Convention on Human Rights, that the European Union institutions—Brussels, if your Lordships will—were not so constrained?
The European Court of Justice had developed some jurisprudence, but it was not clear just what were the restrictions on the European Union, and that is why the charter particularly says in one of the horizontal articles that it is directed at the institutions and only at the member states when they are implementing Union law, which is really a way of saying that the member states are acting as agents of the Union. It is not therefore a substitute for the Human Rights Act, or whatever the equivalent is in other member states. The noble Lord, Lord Owen, absolutely rightly divined one of the issues in the negotiations for the charter, which was to make sure that we did not create confusion about the different rights by having a competing set of rights alongside those which at the time we were only just bringing into force in the sense of making them justiciable in this country through the Human Rights Act; though they had been laws that affected the Government in this country since the 1950s.
We also wanted to make it clear that the purpose of the charter was not to give the Union new powers. So it says in terms in the horizontal articles—which lack the poetry of any treaty but which are there specifically to make it clear what the constraints on the charter and the use of the charter are—that it does not extend the power or the mission of the Union.
Against that background, the Government’s view when I was part of them, and, as it happens, my view as well, was that the charter did not create the risks and problems that some attributed to it, because there were clear rules as to its interpretation, because it was clear that it applied not to the member states in their own right but to the European Union and because it was clear that it did not extend the competence of the Union in any respect. That is why in the speech to which noble Lords have made reference, I summarised the position by saying that the United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts. Moreover, in many cases the charter rights are based on national laws and practices and so they must mirror the extent and content of those national provisions. I give way to the noble Lord.
Yes, my Lords, it is. It is one of the horizontal articles. Noble Lords will forgive me that I do not have the text in front of me; the numbers change from time to time. It says that the purpose is to apply to the institutions and only to the member states when they are implementing Union law and not otherwise.
The purpose was therefore not to add to existing rights or mirror existing rights to apply to the European Union institutions so that they did not trample on our rights in the same way as we accepted this Government should not trample on our rights. Against that background noble Lords may well ask, “Why bother with the protocol? If that is clear, why bother with it?”. My answer to that is, “Why bother with it?”. It is something that was thought to be helpful, to make it clear. The noble Lord, Lord Waddington, said, “Let’s have belt and braces”. The purpose of the protocol was to be belt and braces; not that we believed that it was necessary, but it would put the matter beyond doubt.
I have two difficulties with what has been said. First, I understand from the report I have had—I apologise to the noble Lord, Lord Neill of Bladen, if I have got this wrong—that the noble Lord has relied on what I said as indicating a doubt on my part about the efficacy of the provisions that we put in the charter, or a doubt on my part that the European Court of Justice might go beyond its intended function.
My Lords, the noble and learned Lord was not here, but I expressly referred to the passage in his lecture where he said, “However, going into the treaty negotiations, it was clear that some within the United Kingdom still needed reassurance about the possible effects”, and so on. I did not attribute that to the noble and learned Lord; I said that he was reporting that there were those around him who had those fears.
My Lords, the noble Lord is absolutely right that I was not here. I am much obliged, and I thank him for putting that clearly to me. Certainly that has not been my view. I have seen views reported in many places, from broadsheet newspapers to pamphlets, suggesting all sorts of extraordinary things about the charter that I am absolutely confident it would not achieve. Be that as it may, it was about reassurance, and it was belt and braces. This is the fundamental point that I want to make to your Lordships.
The difficulty that I have with Amendment No. 27—I shall say nothing about Amendment No. 28—is that if you have belt and braces, what more do you want or can you have? If something is holding your trousers up round the middle and supporting them from the top, I am not sure what else you can have. You have some degree of support that is in mid-air, and with great respect to the noble Lord, that is what his amendment is as well. It does not change the fundamental point of what is the obligation; it seeks to create a remedy where one is not necessary and cannot be created.
The noble Lord may have referred to this passage, too, and if so I apologise for repeating it. I said in the lecture at page 13 that although I did not believe the protocol was necessary, if the courts in the UK or the ECJ were to disregard the clear provisions in the horizontal articles of the charter, then the protocol would have teeth.
The point is that the protocol is a treaty which has exactly the same legal effect as any other treaty. Therefore, neither the European Union courts nor the United Kingdom courts could disregard the clear provisions of this treaty, which we call a protocol. They therefore cannot apply exorbitant or extensive interpretations of the charter. They are bound by the terms of the treaty, which is the protocol.
What would the noble Lord’s amendment do? It would do no more than say the same but that some national court had the ability somehow to rule on it. I know that certain people and possibly some noble Lords do not like it but—as the noble Lord, Lord Goodhart, said—the structure of the European Union is such that the European Court of Justice is the final decider of issues within its competence. If the European court sought to take a decision, a national court cannot strike down what the court has said. Therefore, the noble Lord’s amendment is the third suspension that is in mid-air. It can have no teeth, but it does not need any. The belt and braces are there to meet the concerns that the noble Lord, Lord Waddington, put forward. For myself, I could not possibly support the amendment moved by the noble Lord, Lord Neill of Bladen.
My Lords, the noble and learned Lord said that no national court can overrule the European Court of Justice. Will he comment on the arguments on the German Constitutional Court which was referred to by the noble Lord, Lord Owen, when this was debated in Committee?
My Lords, I was not present when the noble Lord, Lord Owen, spoke but I am familiar with the jurisprudence of the German Constitutional Court, which found a way through in the Solange cases when it effectively said that it could comply with the rulings of the European Court of Justice as long as its view was that they did not conflict with fundamental principles of German constitutional law. It reached that position and, as far as I am aware, though others with greater knowledge may correct me, it has not had a real problem of conflict between the two. That has to do with the German constitutional position and nothing to do with the structure of the European Union.
My Lords, it is clear to all of us that if the Judicial Committee of this House or, in future, the Supreme Court gives a decision that Parliament feels is wrong and outside its powers, Parliament can put it right. Who has the power to overrule the Supreme Court in Europe in that way?
My Lords, the point the noble Lord, Lord Tebbit, makes is in no way particular to this debate. It is about the power in Europe—a much broader issue. It is the fact that the member states, which have the power ultimately to set the terms of the relations between member states, have the ability by new treaty agreement to take a different view from that taken by the European Court. It is not as straightforward as Parliament but they can do it. But in my judgment that is not particular to this debate.
My Lords, some noble Lords may find arguments by lawyers in this House less interesting than others. I do not wish to prolong this debate more than I need to, and I do not need to very much because I agree with everything that has been said by the noble and learned Lord, Lord Goldsmith, and by my noble friend Lord Goodhart. However, I would like to draw the House’s attention to the fact that the Select Committee on the European Union sub-committee on which the noble Lord, Lord Blackwell, and I served looked thoroughly at each provision of the treaty of Lisbon but especially at the charter of fundamental rights. In paragraphs 12.40 to 12.41 and paragraph 12.44 of the report, we summarised our conclusions.
First, we said that the charter does not confer new rights; the rights referred to are already contained in the international human rights treaties by which all member states of the European Union are bound. Secondly, we found that we could discern no threat to the public interest of the United Kingdom or its citizens in anything contained in the charter, given that it is there to shield, as the noble and learned Lord, Lord Goldsmith, has indicated, our citizens—the peoples of Europe—against the abuse of power by the European institutions. It is therefore to protect our citizens against abuses of power and does nothing more than is already binding on member states, as I have said.
Thirdly, we looked at the protocol and the terms of the treaty itself. We concluded that it is indeed a question of belt and braces. My own view is that either the braces or the belt were necessary only to give reassurance to noble Lords, such as the noble Lord, Lord Neill of Bladen, who for years has made plain his opposition to the European court’s activism, as he sees it. I do not believe that it was strictly necessary, but I am absolutely clear that the way in which it has been negotiated—by a most unslovenly former Attorney-General—was to produce a result that clearly, beyond any argument, prevents the charter “applying to the United Kingdom”, to use the words of the noble Lord, Lord Kingsland. I do not know what he meant by that. It does not apply to the United Kingdom in the way in which the European Convention on Human Rights and the European Court of Human Rights apply to the United Kingdom.
In Amendment No. 27, the court can indeed,
“find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with”
human rights in the Strasbourg court of human rights. It does so with the highest aspirations of Winston Churchill, Harold Macmillan and the former head of my chambers, Sir John Foster, at a time when the Conservative Party was the European party within our political system. That is what it does. Its judgments are binding and our judges have a duty to apply the convention rights directly as a result of the Human Rights Act.
I cannot understand why Amendments Nos. 27 and 28 propose complicated provisions that in the first place violate the supremacy of European Union law for the reasons given by my noble friend Lord Goodhart. They seek to place UK courts above the European Court of Justice in a way that is unlawful under European law.
Moreover, I do not understand this sudden concern about a possible overreach if the belt and braces do not work. No one has produced even a hypothetical example. The example of the German Constitutional Court is simply an example of a written constitution that states basic rights and freedoms in a way that need to be protected under the German system which had to be reconciled with the paramount law of the European Union. The German Constitutional Court, in its discussions with the European Court of Human Rights, managed to reach a sensible compromise on that question. The fact that there is a now a pending case about all this in Germany is nothing to the point. There has not been a German case I am aware of that would suggest even remotely that the charter could threaten the public interest of this country or its inhabitants.
As I say, we are to take a decision based on evidence. What was our sub-committee doing week after week? It was taking evidence, going through the charter, the red lines and horizontal effect, in order to see whether the view of the noble and learned Lord, Lord Goldsmith, was correct. We came to the view that it was completely correct and that he had reached the right conclusion. These amendments are not appropriate or necessary.
My Lords, I apologise that I may have rather less volume of voice than I have conviction. Despite the onslaught of the noble Lord, Lord Waddington, I do not resile for one moment from what I said last time about the general principles which apply to the decisions and supremacy of the European Court of Justice. That is relevant to paragraphs 3, 4 and 5 of the amendment proposed by the noble Lord, Lord Neill of Bladen.
From the day the European Community was founded and member states joined—one by one or three by three—it was fully accepted that there had to be uniformity in its law. The only way to achieve that was to give primacy to Community law. The European Court fully endorsed those principles adopted by the member states. Lawyers and judges not just in the European Court but throughout the Community have fully accepted this concept of the primacy of Community law. There is no possible justification or reason for departing from it today. Certainly, this treaty does not seek to do so.
I will deal briefly, because of the time, with the two important points which the noble Lord, Lord Neill, raised. First, he spoke about the common foreign and security policy. When the pillars of the community were set up, one pillar was confined to the common foreign and security policy. It was accepted universally that that should not be subject to review by the European Court of Justice. That has not been challenged. Every time it was suggested that the pillars should be changed, that the Court should have more jurisdiction over justice and home affairs, nobody suggested that the foreign policy should change.
The present Treaty on the Functioning of the European Union makes it absolutely plain that the European Union Court of Justice shall not have jurisdiction over provisions relating to the common foreign and security policy, nor to Acts adopted on the basis of those provisions. Yet it introduces in Article 275 that the Court shall have jurisdiction to deal with certain matters, particularly those which review the legality of decisions providing for restrictive measures against natural or legal persons—this is important and justified. I will not read Article 275 but that is an important and in no way restrictive position. The provisions included in the treaty follow what has happened and do not violate the principles we have observed today or which we should continue to observe. I regret that I may be totally inaudible or at the least extremely irritating in suffering either from a bug picked up in an airplane or from some cold from foreign parts.
Secondly, the Charter of Fundamental Rights has been severely criticised for the way in which it happens. It has been made plain in the charter that its underlying rights include charter safeguards. The general articles are of great importance. That the charter is addressed primarily to the Union institutions and affects member states only to the extent that they implement European law is important. I will not say more about that. It is quite plain that the charter is not intended to extend existing rights. Those explanations will lead the court to follow the principles which are intended. It is important to remember in Article 1(8) of the treaty of Lisbon that,
“the Charter shall not extend in any way the competences of the Union as defined in the Treaties”.
The protocol, which has the same force as the treaties, is clear. The European Court of Justice not only cannot ignore it but also must enforce it. It cannot strike it down. The general principle we have followed should apply equally. I am being much briefer than I intended to be.
On Amendment 28, your Lordships’ House and others already have all the reports of the European Court of Justice and the European Court of Human Rights. The Government intend, I understand, a statement of what has been achieved by the European Court and Court of Human Rights—it is already available in many other forms. It is a matter for the Government and Lord President to decide whether what is there is enough or whether we really need more, as proposed.
Finally, I remind your Lordships that the European Community is now to accede to the European Convention on Human Rights. That imposes obligations on the European Union and on the court. It will likely have the effect of restricting some of these exorbitant ideas which have been passed around, that the European Court is going to run amok and do some crazy things in order to defeat the objectives of the charter. It will not do so and what is in our present treaty is an adequate way of dealing with the matter. Again, I apologise. I thank your Lordships for your patience and hope for some audibility.
My Lords, it is a great privilege to follow the noble and learned Lord, Lord Slynn, who has demonstrated the strength of his convictions on this issue and his tenacity by speaking with a voice that I know is just returning. When I attempted to speak to him last week, he had no voice at all. I know the House wishes him well and hopes that his voice will return. To quote the noble Lord, Lord Kingsland, I am going to be telegraphic in my remarks because I do not need to repeat a lot that has been said and could not do so with the eloquence of my noble and learned friend Lord Goldsmith, the noble Lords, Lord Goodhart and Lord Lester, and the noble and learned Lord, Lord Slynn, with whose remarks I would like to associate myself and the Government. I am not going to try to cover what they have covered so adequately. I am also mindful of the time and that noble Lords will wish to reach a conclusion on this.
Amendment No. 27 covers common foreign and security policy and the Charter of Fundamental Rights. There are very clear reasons, which noble Lords have eloquently set out, why the Government have put in place the measures that they have. In doing so, the Government wished to reassure this House, another place and beyond, and to make clear what does and does not apply. We have made it clear that the European Court of Justice does not have jurisdiction over common foreign and security policy. There are two tiny exceptions to that, which I laid out fully in Committee, about policing the boundary between the two. They are that under the new treaty, the court has to protect the distinct character of the common foreign and security policy against encroachment from non-common foreign and security policy provisions, as well as vice versa, and the sanctions that apply to individuals that could come about under this. Beyond that, the European Court of Justice does not have jurisdiction in the way about which noble Lords have expressed concern.
The noble Lord, Lord Kingsland, was worried about the preamble,
“without prejudice to other obligations”
in the EU treaty. That is a misunderstanding about how the protocol works. Any judgment given on the basis of the charter cannot extend the ability of the European Court of Justice to affect the law of the United Kingdom. If the European Court of Justice did the completely unthinkable—we are back to the belt, braces and suspension in midair point—and ignored all the other safeguards in the charter and interpreted European Union law for other member states—a concern that was raised—using the charter to create new rights, it cannot affect our law. That is clear from Article 1.1 of the protocol, which states:
“The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the 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”.
That is in the protocol, and the protocol stands.
The noble Lord, Lord Owen, previously raised the issue of the president of the European Council and the fear of seeping through the president into a jurisdiction. The European Court of Justice has jurisdiction over measures of the European Council with legal effects. It does not have jurisdiction over the political discussions or conclusions of the Council. Were the European Council to adopt legal measures relating to common foreign and security policies, which are extremely rare, they are clearly covered by what I describe as the “carve out” under Article 275. They would relate to the CFSP provisions, and so have jurisdiction on the president. If noble Lords refer to the treaty and look at what has been said, it is clear that there is no need for any additional provision.
My noble and learned friend has gone through the issues around the charter in great detail. I am not going to try to set them out again because noble Lords have listened very intently. My noble and learned friend referred to the interpretation and application of the treaty, but he did not have the reference in front of him. It states:
“The provisions of this 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”.
That was the particular point to which my noble and learned friend was referring.
I am not going to go into all the details about what has been covered on the charter and the safeguards that have been put in place, not least due to the incredible work of my noble and learned friend in negotiating that position. Suffice it to say that the issue that underpins Amendment No. 27 is the primacy of European Union law and the role of the European Court of Justice. If you sign up to a club—which, in a sense, we have done—with 27 member states, you also sign up to the referees that you put in place. The European Court of Justice is in a sense a referee. That is its function. Noble Lords may not like it and may wish that it did not exist, but that is what it does. Its work is important in making sure that the implementation and the work of the European Union is consistent. We have benefited from that. Noble Lords can point to many cases where the European Court of Justice has demonstrated that to our benefit. That is what underpins this amendment and is why the Government will not accept it.
I shall turn briefly to Amendment No. 28. So far, we have asked for 23 reports during our deliberations. I am mindful of not bombarding noble Lords with further information. In speaking to this amendment, the noble Lord, Lord Kingsland, referred to the Constitution Committee report, and I refer to the response to that report that the Government have already published. We have already committed to ensuring that a copy of the European Court of Justice’s annual report is deposited in the Libraries of your Lordships' House and another place. We have also committed to providing explanatory memoranda on all judgments during the preceding year in which we were a party, where we intervened or where we submitted observations. Just to make sure that noble Lords understand the context of that, it will be a considerable number of cases. Of the cases lodged with the European Court of Justice in 2007, we intervened or submitted observations in just over 50, and of cases lodged with the Court of First Instance, we intervened in just under 20 cases. We believe that by putting in the Libraries the European Court of Justice’s annual report and memoranda on everything where the UK has had an interest, we will fulfil what was behind the Constitution Committee’s requirement and request to us. That is a much better option than yet another amendment that takes us into another report. I hope that the noble Lord, Lord Kingsland, will agree.
We already work closely with the Joint Committee on Human Rights. We think that that is the best way to continue our work rather than setting up a parallel process replicating what is already done. That is all I am going to say. Everything that could have been said in this debate has very usefully been said. I am extremely grateful to noble Lords who have spoken. I hope the noble Lord will withdraw his amendment.
My Lords, I shall be extremely brief. I was surprised to hear the noble Baroness say that full protection has been achieved by the first sentence of Article 1 of the protocol. That seems a strange statement in view of the fact that the horizontal articles were not good enough, but something that says almost exactly the same thing, but introduces the word “UK” gives complete protection. That is among the answers she gave. We heard the noble and learned Lord, Lord Slynn, will listen to his advice and bear in mind the respect we owe to his speech.
The noble Lord, Lord Goodhart, said that we cannot legislate on the basis that the ECJ will err, but that is precisely what the Government did in calling for the protocol. There were references to paranoia. I shall not demean the argument by answering them. I do not believe that the noble and learned Lord, Lord Goldsmith, answered the passage I read from his speech saying that the protocol would bite in the event that this extraordinary thing happened. We never really had an answer to that. His position is probably that it cannot happen here. That is all I wish to say. We have had arguments both ways, and I wish to test the opinion of the House.
[Amendment No. 28 not moved.]