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§ Mr. Win Griffiths (Bridgend)
It is a pleasure to debate again the European Union charter of fundamental rights; we debated it nine months ago when the process had just begun. Now, from the convention's point of view, that process has been completed. When the body met for the first time before Christmas 1999, we were in truly uncharted territory. The mandate outlined at the Cologne European Council in June was both as clear and as ambiguous as the members of the body wanted it to be. The large number of members of the body—62 was the figure decided at Tampere in the October European Council—threatened to make it unworkable. It was feared that the talking could become interminable, with wide-ranging debate and no decisions.
Attending the first meeting in December 1999, I felt that the European Councils of Cologne and Tampere had presented us with a more than considerable challenge by asking us to complete a draft charter for the Council by December 2000. Within three months, even that challenging timetable was speeded up, with talk of the draft being ready by the end of July. With some additional meetings and with some two-day meetings turning into three-day sessions, a preliminary draft text, known as convent 45, was produced before the summer break.
Throughout the process, the secretariat and praesidium of the convention—as the body quickly agreed to call itself—had a mighty logistical task on its hands. The pre-preliminary draft text, known as convents 28 and 34, was subject to more than 1,000 amendments—27 of which were mine—so it was a miracle that convent 45 was produced by the end of July. The process had thus reached a sufficiently advanced stage for all the substantive issues to have been well aired and negotiating positions made plain. A summer of hectic activity behind the scenes was assured to fine tune the July text and find a form of words to clarify the ambiguities that many convention members saw in the Cologne mandate when the convention met again in September and October.
For me, the Cologne mandate was clear. The convention was directed to consolidate in a charter the fundamental rights applicable at European Union level, so that those rights themselves and their overriding importance were clear to the Union's citizens. The mandate also directed us to the sources for setting out those rights. The charter was to be based on the European convention on human rights, the constitutional traditions of member states and general principles of Community law.
In addition, we were told to includeeconomic and social rights as contained in the European Social Charter and the Community Charter of Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union.The latter point was at the centre of the political debate about which economic and social rights should be included in the charter and how they should be expressed. In the economic and social sector, how was the judgment to be made between a fundamental right 72WH and an objective for action by the Union? The temptation for progressive political opinion was simply to accept that the European social charter and the Community charter should be regarded as statements of fundamental rights without any attempt to decide which were desirable political objectives.
The argument continued that, as we moved into a new century and prepared for a further expansion of the EU, a wider all-embracing view of the charter was needed. The strongest, though not the only, protagonists of that view were most of the 16 Members of the European Parliament who were on the convention. They saw, and still see, the charter as an opportunity to strengthen the European Union and to enhance the rights of its citizens and the role of the European Parliament. To be fair to the MEP convention members, however, some were willing to distinguish between fundamental social and economic rights and desirable political objectives for the European Union and its member states.
There were also a few who viewed the exercise as an opportunity to regain for member states some of the sovereignty that they have pooled within the European Union. The majority, however, wanted a charter that would at least be a protocol of the treaty and seen to be a legally binding document that covers all aspects of European Union activity, including common foreign and security policy, justice and home affairs and institutions such as Europol. Of the elected members of the convention, the European Parliament had the most opportunity, time and resources to develop an institutional view of the charter. In drawing up its report on the charter with rapporteurs Voggenhuber and Duff, at least six of its committees provided opinions for the committee on constitutional affairs.
The 30 members of the convention representing national Parliaments broadly fell either into the maximalist view of the majority of European Parliament Members or what I describe as the discerning view—because I took it—on social and economic rights for inclusion in the charter. Indeed, it would be unfair to define rigid blocks of opinion, particularly in the latter group, non-maximalist Members, such as myself, wanted rights to be included—for children and minorities, for example—that possibly strayed beyond a strict interpretation of the Cologne mandate. However, I think that the charter has satisfied such demands for children, if not so much for minorities.
The nature of the charter is critically important. The Cologne Council decision stated that the charter was not to be a legally binding document, although it raised the possibility of the Council making it so at a later date. Despite there being a significant number of convention members who would have liked the charter to be legally binding rather than a declaratory document, they were on the whole content to leave the European Council to make a decision as laid down in Cologne. That has meant, however, and not unreasonably so, that the convention, in its deliberations on the charter, sought to draw it up in such a way as to facilitate the process for it to become legally binding. I have always considered that that argument had more to do with the process than the principle. Even though the charter was not meant to be legally binding immediately, the fact that its purpose was to make existing rights more evident and their overriding importance and relevance more visible 73WH means that European Union citizens and residents will have legal redress against the Commission and member states when creating or implementing Community law.
Lord Goldsmith, the representative of the British Government, came forward with a proposal at an early stage to link the charter rights clearly with their legal source in a single document with two parts: part A stating the rights, and part B stating their legal source. During the early stages of the convention discussions, there seemed to be sufficient agreement to proceed along those lines, although several members of the maximalist school expressed strong reservations. The preparatory versions up to what were known as convents 28 and 34 of the charter had a two-part style, but not that envisaged by Lord Goldsmith. Perhaps that was a typical euro-compromise.
Late in the day, after the European Council in Feira, rumours began to circulate that the incoming French presidency wanted to use the charter process to develop the concept of a European social model. That was given form in the Braibant-Meyer proposals on social and economic rights—Braibant being the representative of the French Government and Meyer, the representative of the Bundestag.
Progressive opinion had no problem with the sentiments expressed, but doubts arose from two different angles. On the one hand, to be enforceable, any rights in the charter must have a legal base in the European convention on human rights, Community or national law, or international conventions signed by member states. On the other hand, convention members from states such as Sweden, which has well-developed progressive social and economic rights legislation, wanted to be reassured that, if such rights were included in the charter, the European Court of Justice could not use the charter as guidance and make decisions that would undermine national legislation in areas in which Community law was not strictly applicable.
Article 46 of the pre-preliminary draft charter—known as convent 34—provided reassurance on that latter point. It stated that the charter did not establish any new competences or modify existing ones, as defined in the treaties. Furthermore, the charter was addressed to the institutions and bodies of the European Union and the member states exclusively within the scope of the treaties and Community law. Those proposals were further developed in articles 49 and 50 of convent 45, the preliminary draft text. Those articles should reassure people, whatever their thoughts on the nature of the charter, because they place the charter within the context of Community competences. Of course, the very existence of such reassurances provides rabid anti-European Union scaremongers with the opportunity to raise unfounded fears about a back-door European Union takeover of all aspects of member state law and competences.
Over the past 11 months, I have been struck by how the British press has portrayed the charter as a nascent European constitution under which Governments will lose their powers and citizens their democratic rights and historic freedoms. That argument has been supported with quotes from the minorities at each end of the European spectrum.
§ Mr. Christopher Gill (Ludlow)
I do not know whether the hon. Gentleman would describe the Foreign 74WH Minister of Belgium as a member of the minority spectrum. When he was asked in a recent interview how much importance he attached to the European charter of fundamental rights, he replied:It is an essential document that foreshadows the future European Constitution we are hoping for.Will the hon. Gentleman comment on that quote in the light of his previous remarks?
§ Mr. Griffiths
Yes, it is easy to comment. One has only to consider the position of the entire Council and the 62 members of the convention to conclude that that is a minority view and at one end of the spectrum. If it were not, the charter would have come to us in a different form and there would have been a majority in support of making it a directly legally binding document. That is not the situation. We must face the fact that, however distinguished the Belgian Foreign Minister, he is part of a minority.
§ Mr. Bercow
Further to the observation made by my hon. Friend the Member for Ludlow (Mr. Gill), I take it that the hon. Gentleman regards Mr. Prodi, the President of the European Commission, as representative of a minority. He said that the Commission was behaving, step by step, like a growing Government. In support of the hon. Gentleman's thesis, and in reflecting on the justiciability of the charter, what assessment has he made of article 6 (2) of the Maastricht treaty?
§ Mr. Griffiths
I will refer to article 6 (2) of that treaty. The charter in its present form, as currently agreed by the Council, will not be a directly justiciable document. My thesis is that each article of the charter has a legal base, as shown, in convent 49; I will return to that matter.
On the one hand, there is the federalist spectrum, which represents a minority view. However distinguished the people who propound that view, one cannot escape the fact that it is a minority view. Otherwise, we would have a different charter. At the other end of the spectrum is the nation-statist, who vows to fight to the end the perceived threat. The implication was also that all this was happening in dark corners in Brussels, where members of the British media had to use every kind of investigative subterfuge to bring the charter process into the light of day. The truth is that all of the convention proceedings—every meeting, every minute and every second—were open to the public. Not a single private session took place. In addition, every document issued by the convention appeared on the charter website. In fact, one newspaper, The Times, published the preliminary draft charter with banner headlines about how it had discovered a secret plot. The charter was there for anybody to see. It may be that the British press did not always follow the charter in detail—only reporting on it from time to time—but that was not the fault of the charter and its proceedings. Everything was open to the public.
I strongly believe that the outcome of the convention is a charter emphasising the legal protections and democratic rights of individual European Union citizens and residents, the responsibilities of EU institutions, bodies and member state Governments to uphold the law and provide good administration, and 75WH the responsibilities of individuals to uphold the ethos of the charter in their respect for the dignity of other people, human rights, democracy and the rule of law. I am sure that all hon. Members would agree with that. We should not get stuck on the wilder shores where the charter is seen as a nascent European constitution. The critical debate is on the realities of creating practical processes to give effect to the charter in promoting individual and institutional rights and responsibilities in the context of the European Union.
One area of critical concern is the way in which the European convention on human rights will fit into the charter and consistency be maintained in judgments made by the European Court of Justice and the European Court of Human Rights on issues that are common to the new charter of fundamental rights and the European convention on human rights, with its half century of case law determining levels of protection. The charter of fundamental human rights must be clear on the role of the European convention on human rights in providing minimum levels of protection. It must also ensure that the obligations of EU institutions and bodies are consistent with those of its member states.
§ Mr. Gill
The hon. Gentleman will be aware of what is stated in the preamble to the charter. Is it not significant that, in the preamble, references to national domestic law or statute concerning rights are omitted? However, article 9 of the charter, which refers to the right to marry, states that that should be guaranteed in accordance with national laws, which are not even mentioned in the preamble.
§ Mr. Griffiths
Although there is no specific reference to national law in the preamble, I am sure that the hon. Gentleman will confirm that the charter reaffirms, with due regard for the powers and tasks of the EU and the principle of subsidiarity, the rights as they result in particular from constitutional traditions and international obligations common to member states. Although it does not refer to national law, it refers to constitutional traditions and the principle of subsidiarity, which, as everyone knows, is about the implementation of national law.
§ Mr. Bercow
I am afraid that resting on subsidiarity is not acceptable. Is the hon. Gentleman not aware of the protocol on the application of principles of subsidiarity and proportionality in the treaty of Amsterdam? It states:The application of the principles of subsidiarity and proportionality shall respect the general provisions and objectives of the Treaty, particularly as regards the maintaining in full of the acquis communautaire and the institutional balance…it shall not affect the principles developed by the Court of Justice regarding a relationship between national and Community law, and it should take into account article F(4) of the Treaty on European Union, according to which "the Union shall provide itself with the means necessary to attain its objectives and carry through its policies.It is game, set and match for justiciability.
§ Mr. Griffiths
Despite that impressive quotation from the treaty, I beg to differ. At specific points, the charter recognises that the European Union does not have 76WH competence to become directly involved in how laws are implemented in member states. That is why at specific points the charter refers to the fact that the right is determined by how it is implemented by national law. No court can undermine that.
Although member states of the European Union are signatories to the ECHR, the Commission is not. The charter must, therefore, make provision to deal with inconsistencies that could arise with charges of a two-tier system of protection developing between Strasbourg and Luxembourg 0—between Council of Europe members that are in the European Union and those that are not.
The French Government has led the argument against the need to refer to ECHR case law in the charter, while the British Government has been in the vanguard of those arguing for such a reference. The ideal solution would be to allow the Commission to become a signatory to the ECHR, but that presents political and legal difficulties. The European Court of Justice ruled in 1994 that the Commission did not have the legal standing to sign up to the ECHR. On the political point, it also raised issues about the potential statehood of the Commission and about the Community assuming the same identity as a state, so that was off the agenda.
The Council of Europe observers on the convention, Marc Fishbach and Hans Christian Kruger, have expressed their satisfaction with the draft charter as approved at the informal European Council session at Biarritz on 14 October. However, they rightly point out the critical importance of the way in which charter rights will be applied by the European Court of Justice to avoid establishing two different levels of rights. Their solution—that the Strasbourg court interprets European convention rights in the charter—seems to be a reasonable way of maintaining consistency in the field.
§ Mr. Griffiths
No, I do not believe that that is a danger. Parliaments still make the law; judges interpret it. If at any point a Parliament should feel that, whoops, perhaps it did not specify a matter clearly enough for that matter to be properly interpreted, it has the right to change its law. Most modern democracies have a system of judicial review, which is stronger in some countries than in others. In Britain, judicial review is possible of the application of laws by the Government or local authorities, for example. I therefore do not perceive that as a danger.
§ Mr. Bercow
I am extremely grateful to the hon. Gentleman, who has been extraordinarily generous in giving way. Earlier, he was quizzical about the contents of article 6 (2) of the treaty of Maastricht, to which I referred. Given that that article suggests that the charter's justiciability derives from the general principles of Community law, and that those take precedence over British law, I do not understand, and I should be grateful if he would explain, how he can dispute the point about justiciability.
§ Mr. Griffiths
There is a difference in interpretation. I do not believe that any one part of the sources of the charter's rights takes precedence over another source. The charter may state that a certain right could have a base in any one of several documents. However, if it states that a right was implemented under national law, that stands fast. I shall refer later to one or two relevant examples. It is a reasonable way in which to maintain consistency.
Debate within the convention was constructive and good-natured. The occasions were few when tempers were aroused and stand-offs threatened. That was to the credit of its members and the presidency in the chair, especially of President Herzog, the former President of Germany, who chaired the meetings superbly. There was a period when, unfortunately, he was absent because he had a slight stroke, and then his wife died tragically. However, we were still aware that he was exercising a calming influence behind the scenes.
We now have a charter that is a statement of rights, responsibilities and duties addressed to the institutions and bodies of the European Union with due regard to the principle of subsidiarity and to member states when they implement Union law. It does not establish a new power or task for the Community or the European Union, or modify powers or tasks defined under the treaties. However, it achieves the purpose of the Cologne mandate of making the rights of citizens and residents more clear. Convent 50, in its second revised form, dated 9 November is the current English version to which hon. Members can refer. It needs to be read alongside convent 49, which can be regarded as the Goldsmith version, with a text of explanations directing the citizen to the legal base for each right.
For example, article 10 on freedom of thought, conscience and religion is based on article 9 of the European convention on human rights. Article 32, the prohibition of child labour and protection of young people at work, is based on directive 94/33/EC, article 7 of the European social charter and points 20 to 23 of the Community charter of the fundamental social rights of workers. Article 28, the right to trades union collective bargaining and action, is based on article 11 of the ECHR, article 6 of the European social charter, points 12 to 14 of the Community charter of the fundamental social rights of workers, and, because the right to strike is defined differently in member states, national law as laid down on that subject.
It would be tempting to consider the legal base for each article and then discuss the possible effectiveness of any action that might be taken. I believe that the picture is more clear for some articles than for others, but that would be for lawyers to decide in building up a case.
The charter is not a proto-European constitution. It is, however, a step forward for citizens and residents of the European Union. It ensures that both European and national law concerned with the development and implementation of EU policies does not infringe their fundamental rights and that redress is available should that happen. I remain amazed that the clearly stated purpose of the charter can be traduced by anyone as a plot to create a European super-state. The charter should be welcomed without exception.
§ Mr. David Chidgey (Eastleigh)
As a member of the United Kingdom delegation to the convention, I should like to draw attention to the accuracy with which the hon. Member for Bridgend (Mr. Griffiths) has recorded the events. He outlined them very clearly. However, having listened to some of the interventions that have been made in this and previous debates on the charter, I have the impression that some hon. Members think that we do not need the charter and that it is just another exercise in bureaucracy and red tape and control by Brussels of our own affairs. How does that sit with the constant call for more clarity in the European Union, a clearer statement of the rights and responsibilities of nation states to their citizens and a clear description of the rights, responsibilities and limitations of the EU institutions?
§ Mr. Chidgey
No, I shall not give way just now.
We also need a clear understanding of the rights of individual citizens. It seems rather paradoxical that many of those who question most avidly—and, perhaps, rabidly — the relevance of the charter also call for more clarity.
§ Mr. Chidgey
It seems that the same people who question the validity of the charter also ask for more clarity in the EU, a clearer statement of rights and responsibilities and, most important, a clearly stated limitation on the EU institutions. That surely is the purpose of the charter.
I shall add to the debate my reflections about the meetings of the convention in Brussels. It was an interesting experience to be a member of the UK parliamentary delegation to the convention that drafted the charter. As the hon. Member for Bridgend said, the convention was drawn from widely different parts of the European political establishment and included delegates from the Governments of EU member states and from the well-organised European Parliament, and Members of Parliament from the various states of the EU, including our own.
The process of drafting and amending the charter was far removed from the procedures followed in this House. There is no ruling party with a built-in majority, so we did not have to put up with anyone steamrollering through ill-thought-out clauses—something that we have learned to live with here. Progress could be made only through consensus. Strange and unknown as it may have been to members of the UK delegation, a climate of debate instead of dictatorship by majority prevailed. Sometimes extreme political groupings tried to use the charter to advance their political philosophies, but the power of logic, sound argument and persuasion was the most convincing and invariably won the day.
79WH The UK delegation often led the way in ensuring that the charter was a triumph of principle and sound practice over the bizarre and extreme—of which we have heard a good example this morning. We should recall that the convention universally recognised the major contribution made by the UK in the drafting of the charter. That gave me and, I hope, many others a clear demonstration of the fact that when we engage in Europe we can play a leading role, which is welcomed by other member states.
The charter now goes forward to the intergovernmental conference. Instead of exercising old prejudices, we should be debating that move. The charter is likely to be proclaimed by the heads of state at the intergovernmental conference in Nice. I am not quite sure what that means; it may be a means not of accepting it in general but of putting it to one side. We need to consider whether the charter should become binding, but I believe that it should.
We have the opportunity this morning to establish how the charter could be used to benefit the citizens of Europe. Should it be incorporated into the EU treaties? Should it become justiciable within the European and national courts of law? It is intended to offer protection to the citizens of Europe from the abuses and excesses of EU agencies that the official Opposition party seems so concerned about. I and my colleagues would argue for a rational approach.
We should not necessarily be afraid that the charter will pave the way to a constitution for the European Union. That outcome may be some years away, provided that we do not try to form a constitution that implies the creation of a European state. I understand that fear. I understand the big beasties that the Opposition see around every corner, but that does not mean that we should not engage in the debate about how best to protect the citizens of Europe. I would like to see not a proper constitution, which would imply the creation of a European state, but a statute of limitations on the competencies and powers of the European Union. It could clearly define and limit the role of EU agencies. It is important that we state the rights of the individual citizen of every nation and the means by which rights can be protected and preserved, a point touched on in the opening remarks made by the hon. Member for Bridgend.
The European Union is now working to a programme of accession for a further six states or more to join by 2004. I would like the Minister to commit to requiring those states to satisfy their obligations under not only the European Union treaties but the charter of fundamental rights.
§ Mr. Kevin McNamara (Hull, North)
I congratulate my hon. Friend the Member for Bridgend (Mr. Griffiths) on his fine exposition of the situation and of how we arrived at the charter. It is the second time that we have had the benefit of his wisdom and experience. He rendered clear what the British press has often seen as murky and made a powerful speech enunciating what had been achieved and the congratulations due to the British delegation in the negotiations.
80WH I want to raise several matters contained in the charter. One of the weaknesses of arriving at documents in the current manner is that, for example, we do not have an opportunity to try to amend them. That is a weakness of international treaties and I understand it.
§ Mr. Win Griffiths
I tried to secure a debate in Westminster Hall in July, but the way of the world and the luck of the draw are such that I did not succeed. A debate then would have enabled people to make observations that I could have taken to the September session.
§ Mr. McNamara
I do not criticise my hon. Friend, but the system means that we parliamentarians do not have the opportunity to do so; we have to depend on him to be a postman for us and find a letterbox in which to post our observations. That was not possible on this occasion.
Several matters concern me about the charter, but first I should say how much I welcome articles 1 to 4. They are on human dignity, something that is under a great deal of attack. The first three state:Human dignity is inviolable. It must be respected and protected…Everyone has the right to life…No one shall be condemned to the death penalty, or executed.Those are firm statements. It is to the credit of the Council of Europe that Europe became a capital punishment-free zone this year for all civil offences and for all military offences in many countries as well. That is to be welcomed.
§ Mr. Bercow
The hon. Gentleman may be pleased to know that I strongly agree on that point. However, I do not believe that signing up to the abolition of the death penalty now should preclude the House considering the issue again. He was vocal during the passage of the Bill that became the Human Rights Act 1998. Is it his understanding that its incorporation and that of the charter would mean that the House of Commons was not permitted to consider the death penalty again?
§ Mr. McNamara
The House of Commons would not he prevented from considering it; the House of Commons can consider anything, even whether the moon is made of green cheese. It is certainly true that if we took positive action, we should have to withdraw from the Council of Europe and, presumably, if the charter were incorporated in the fundamental treaties of the Community, from the Community too. That was one reason for my strongly urging, against the Government's advice, that we should incorporate protocol 5 of the European charter on the death penalty into the Act that establishes the convention. It would make it as difficult as possible for the death penalty to be reintroduced in this country. Happily, on a free vote, many colleagues supported that argument.
I welcome the charter, but I am interested in interpretation, on issues such as cloning and euthanasia. I take what might be regarded as a fundamentalist approach to those matters. In any event, they will be important. Equality and non-discrimination will also 81WH require attention. Again, I welcome current thinking on those matters, but several exceptions exist in the sphere of non-discrimination. With respect to women the draft charter states:The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.In the article dealing with integration of persons with disabilities, it states:The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.I welcome both those provisions and the general principle that there should be no discrimination, but those are not the only forms of discrimination. It is hard to see how the present articles would allow affirmative action programmes to be started to help people who had suffered discrimination on grounds of colour, religion or gender, or to raise their living standards or establish positive social programmes to provide them with advantages that they would otherwise lack. Specifying two exemptions—women and disabled people—to the established general principle might make it difficult to create special programmes to help, for example, black people in this country, Turks in Germany or Algerians in France. I regard that as a weakness in the charter.
Article 23 also states:Equality between men and women must be ensured in all areas, including employment. work and pay.However, it does not include education. A general reference to education is made elsewhere in the document, but without equality in education for men and women, opportunities for women could be severely limited. I am surprised that the lady members of the Assembly did not notice that point.
§ Mr. Griffiths
My hon. Friend has raised an interesting question, but I wonder if he could explore it further. I do not think that anyone could claim that girls are disadvantaged in education in comparison with boys, to judge by entry to universities and medical schools —more women than men are entering medical schools at present. For those who work in education, equality of opportunity and advancement would surely be covered by the general reference to employment. What specific weaknesses has my hon. Friend identified?
§ Mr. McNamara
I am well aware of the situation in my country, but my hon. Friend will know that other countries want access to the Community. They would presumably in due course be governed by the principles in the charter. Some of them might have different traditions governing the way in which they perceive women. I am glad that my hon. Friend accepts that point. It would be interesting to hear my hon. Friend the Minister's observations on that matter.
On justiciability, one of the major concerns raised in debates in the House and in the Council of Europe—I should explain that I am a member of the human rights sub-committee of that council—has been having a two-tier system of justice, one for members of the Community and another for the rest of Europe. It is of the utmost importance that the accession of the Community to the European convention be resolved. 82WH I understand the decision of the European Court of Justice that because the Community is not a state per se it cannot sign up to the European convention. I accept that, but it should not be beyond the bounds of human ingenuity for the European Union and the member states of the Council of Europe to amend the convention to enable the EU to sign up to it. That should be done without giving the Union any of the appurtenances of statehood, which might cause consternation to those sitting on my right and my extreme right.
Such a course of action should be carefully examined, as it would overcome the problem of potentially dichotomous judgments or judgments going in opposite directions from the same basis of interpretation within the European Union. That should be seriously addressed. I say that for another reason, because we not only have the charter of fundamental rights of the European Union and the European convention, we also have a plethora of charters springing up all over Europe. They include the convention of human rights and fundamental freedoms of the Commonwealth of Independent States—that is, those countries that are dominated by Russia. Those countries have proposals that in many ways lack the strengths of the European convention. If we ended up with a justiciable charter of fundamental rights of the European Union, a general one for the rest of Europe, and then a further, weaker one for the CIS states, we would be in a grave position, with conflicting ideas, jurisdictions and decisions. That being the case, it is of the utmost importance that the Community and the Council of Europe get together to find some way in which the convention can be amended so that the Community can join.
Finally, I would be grateful if we could be told precisely what will happen at Nice when the matter is discussed. When an announcement is made from the top of the casino, will we be told that our aspirations to gather together the rights, duties and responsibilities of Governments and individuals in the Community are merely aspirations? Some people have said that the charter will have an indirect persuasion on the powers of the Luxembourg court, being a document to which it may refer under the Maastricht treaty. That treaty contains certain human rights provisions, and some of us were opposed to their inclusion because of possible conflict with the Council of Europe, which could be dangerous.
I hope that my hon. Friend the Minister will be able to answer some of those questions and, again, I thank my hon. Friend the Member for Bridgend for securing a debate on this matter.
§ Mr. Christopher Gill (Ludlow)
I, too, pay tribute to the hon. Member for Bridgend (Mr. Griffiths) for securing this debate. I am mindful that he initiated another earlier in the year, and both have been helpful in exploring exactly what is intended with respect to the European Union charter of fundamental rights. Having paid tribute to him, however, I express my great disappointment that the hon. Member for Eastleigh (Mr. Chidgey) was not prepared to give way. He made certain assertions, but refused to take any interventions. He rightly said that there was some doubt about the purpose behind the charter of fundamental rights and went on to explain how he envisaged it. His refusal to 83WH accept any interventions precluded other views from being expressed. I cited the Belgian Foreign Minister earlier, but the hon. Gentleman should be aware that the French Minister for European Affairs also recently said:The discussion on the Charter's future is closely related to the discussion…to provide the European Union with a Constitution… Post Nice…there is the issue of transforming the treaties into a single constitution.The hon. Gentleman should have given way to allow me to express that point.
We are not confused by intention, and nor do we want to be, but we hear conflicting signals from all quarters, including from senior politicians. We are conscious of the spat in our own country, in which the Foreign Secretary has told the Chancellor, "You are not Prime Minister yet", and that he is the boss. What the Foreign Secretary says about negotiations on the treaty of Nice is what counts, and he does not want any interference from the Treasury. It is not possible simply to discount what the Foreign Minister of Belgium or the French Minister for European Affairs say. They are senior politicians with a responsible attitude towards these matters. I must draw the Chamber's attention to the fact that our own Minister for Europe described the charter as the Beano.
§ Mr. McNamara
I am trying to follow the hon. Gentleman's argument, but it is difficult. We have this treaty, that treaty, this treaty and another treaty: what is wrong with putting them all together? Consolidating the treaties in that way would not create a constitution.
§ Mr. Gill
I think that I understand the hon. Gentleman's point, but I am not the right person to answer his question. The purpose of today's debate is to find out from our own Government representative exactly what is going on. Where is it all leading us? I shall give way in a moment to the hon. Member for Bridgend, but before I do, let me pose this clear, direct, simple and straightforward question to the Minister. Is the charter of fundamental rights a prelude to a European Union constitution? Today, the Minister has an ideal opportunity to give Parliament a categorical assurance that the charter either is or is not a prelude to a European Union constitution. That would clear the air, and I would then be able to take cognisance of my own Government rather than being confused by the statements of senior politicians in other countries.
§ Mr. Win Griffiths
The hon. Gentleman quoted two out of 15 Foreign Ministers in the European Union. Yes, some people view the charter as a step on the road to a European constitution, but they are in a minority. On the other side of the fence, some people do not want a charter at all, but they are also in the minority. The broad spectrum of opinion in the middle wants the charter to remain as it is. As the hon. Gentleman knows, a further step towards creating a European constitution requires amendment to the treaties, to which every member of the Union would have to agree; in some member states, a referendum must be held before any agreement. We should get real about the possibility of creating a European constitution from the 84WH charter. That will not happen or, if it does, it will happen so far into the future that it need not concern the hon. Gentleman, or me, or the next few generations.
§ Mr. Gill
That is all very well. I pay tribute to the hon. Gentleman, who presented his case extremely well; he gave a full exposition of his involvement in bringing the charter thus far, and some background to our present position. I do not have a definitive note of what all 15 Foreign Ministers said on the subject although I know what some said, and have I quoted two. The House should be more interested in what our own Minister for Europe thinks about the subject. Does he believe that the proposal is a prelude to a European constitution? Does he want the charter to be a prelude to a European constitution? With due respect to the hon. Member for Bridgend, it is the Minister who must answer those questions.
As with so many other features of the European Union, the hon. Gentleman, trotted out the canard that we should not worry because what we fear will not happen, that "this is as far as it goes". But we have seen it all before. In the past few days, a European army has been announced, even though people continue to deny it. The world press shows how the announcement is interpreted in other European countries. For example, according to reports in Die Welt yesterday, there is no doubt in the German mind that what is proposed is a European army, yet a few months ago people denied that. They said that it was a figment of our imagination and that we must not become hysterical about it. Policies adopted by the European Union always start as a small cloud no bigger than a man's fist, but before we know where we are they becomes something quite different.
§ Mr. Bercow
I share my hon. Friend's disappointment at the style and the federalist stance of the hon. Member for Eastleigh (Mr. Chidgey). Is my hon. Friend aware that by contrast the excellent prospective Conservative parliamentary candidate for the Eastleigh constituency, Mr. Conor Burns, is a strong supporter of national self government? He fervently opposes the incorporation of the European charter of fundamental rights and freedoms into British law. Does my hon. Friend agree that that will make it much easier for Mr. Burns to overturn the precarious, wafer-thin, 754 majority of the hon. Member for Eastleigh?
§ Mr. Gill
No, I must make progress and I have already given way to the hon. Gentleman.
This is the right place and the right time to ask the Minister questions. At the back of my mind is a press report a few months ago in which the Minister for Europe said that we must have a proper debate on European matters and get all the facts into the open. The last time that we debated these matters, the Minister, although always genial, was not entirely serious. In response to serious comments, we got flip remarks such 85WH as, "The hon. Gentleman is only demonstrating his opposition to European union." That does not answer our questions. I shall therefore repeat them. What is the need for the charter of fundamental rights? What is the motivation for it? Is it, or is it not, a prelude to a European Union constitution?
I have taken a considerable amount of the House's time. It is only fair that I should sit down now to make way for others who wish to speak, but more particularly so that there is time at the end of the debate for the Minister to address himself seriously to the questions that have been put to him.
§ 12 noon
§ Mr. Mark Oaten (Winchester)
In February the hon. Member for Bridgend (Mr. Griffiths) provided a progress report to the House on the convention and the drafting process. I am grateful for this opportunity to revisit the issue and I congratulate the hon. Gentleman. Two things are clear. The first is the wisdom of continuing to hold Westminster Hall debates because they provide an opportunity to discuss important issues. However, I am concerned that we have to rely on the luck of the ballot to review an important piece of European policy. I concluded my contribution to that debate in February by saying that we should monitor progress carefully to ensure that the charter is implemented at a time that is appropriate to the best interests of individuals throughout Europe. It is appropriate, given that an intergovernmental conference will occur in a couple of weeks' time, to revisit some of those issues.
Ensuring that fundamental human rights are in place is a prerequisite to unlocking the potential of individuals throughout the European Community. We have heard a great deal today about articles and theories, but we have not heard much about individuals. People must be our starting point when we judge whether this is the right form of policy to have throughout Europe and what impact it has on individuals' daily lives. I find it increasingly frustrating that the media appear to be like rabbits caught in the headlights. They are obsessed that the charter is yet another step to what they describe as a superstate. Others may be happy to regard the charter as another jigsaw piece in their conspiracy theory. Such a distorted and dismissive view has little constructive value.
The objectives of the charter are clear and well intentioned. The road to execution has been less than straightforward although few will have expected it to be anything other than a bumpy ride. Back in August The Economist painted a bleak picture of what we then had before us:It resembles not so much a Charter of Fundamental Rights as a badly organised package tour. The authors of the European Union's proposed new human-rights declaration have stuffed in a bit of everything, from the obvious to the incomprehensible.That was always the concern that many of us had about the charter: too much had been included with little idea of what was most important. The article continued:It is written in exactly the sort of eurobabble that nobody except lawyers, interest groups and other connoisseurs of the genre will ever read.That was my second concern. If something were to come out of the charter, it had to be clear and understandable to the individuals whom it would affect. 86WH Fortunately the draft of the charter was significantly revised in September. In the approach to the Nice conference, the Foreign Secretary spelled out last week what he believed the charter is trying to achieve. He said:The Charter of Rights will be a political declaration, not a binding document. It will set down, for the first time in one place, the rights to which the EU's residents are already entitled.It is clear that there is no agreement between member states about the charter's status. Recent reports suggest, and I hope that the Minister can clarify Britain's position, that Britain is not alone in rejecting a fully justiciable charter in the short term. Ireland, Sweden, the Netherlands and others have said that placing the charter in the treaties at this juncture would be inadvisable. At present, EU treaties contain no explicit code of human rights, and the convention on human rights cannot give redress when EU institutions breach convention rights because the EU has not acceded to the convention.
Liberal Democrats argue that decisions about what should and should not be a legitimate concern of the EU must not be made ad hoc. We are clear and public about the need for a constitution for Europe that defines and limits the powers of EU institutions, setting out which decisions should be rightfully taken at which level. Such clarity should be welcomed and not feared, as some Conservatives who have spoken fear it.
The draft charter of fundamental rights is an important part of the process, as it will set out the rights of the individual citizen in the European context and the correct forms of redress against any misuse of power in the EU. To incorporate a new charter at this stage, however, would significantly increase the burden on the legal system, which is still adjusting to the incorporation of the European convention on human rights into domestic law. Surely the correct place for such a charter, if it is to be justiciable, is at the heart of a constitution for Europe. Only a constitution that clarifies and defines the functions of the European tier of Government would provide a stable and legitimate framework for the democratic development of European politics at all levels, help to reconnect European institutions to the people, and guarantee that decisions are taken at the most appropriate level. Mr. Winterton —
§ Mr. Deputy Speaker (Mr. Nicholas Winterton)
Order. I have achieved little in this place in 30 years, but the one thing that I have achieved is the title of Deputy Speaker.
§ Mr. Mark Oaten (Winchester)
Mr. Deputy Speaker, your colleague Mrs. Roe gave us a ruling that that convention had changed. I am aware of confusion among hon. Members, but I was abiding by that ruling in addressing you as Mr. Winterton.
§ Mr. Deputy Speaker
Four members of the Speaker's Panel have been given the title of Deputy Speaker for Westminster Hall, of whom I am one. Others who chair 87WH Westminster Hall from time to time are addressed by name, because they are simply members of the Chairmen's Panel. Mrs. Roe, who was in the Chair before me, is one of them. Other additional Deputy Speakers include the hon. Members for Crewe and Nantwich (Mrs. Dunwoody) and for Stockton, North (Mr. Cook).
§ Mr. Oaten
I apologise, Mr. Deputy Speaker, and I am grateful for that clarification. The rule is more confusing than some of the stuff that comes out of Brussels.
The Nice conference should seek to establish a constitutional convention, composed of representatives from member state Governments, national Parliaments, the European Commission and the European Parliament, which would be charged with drawing up a constitution of the EU. The charter's passage should not take place in a vacuum. How many of Europe's 372 million citizens know that it exists? Perhaps only slightly more than the number of people who appreciate why it is relevant and what it is intended to achieve. If the charter is seriously intended to help European citizens and bring together a people's Europe, surely a key aspect is making them aware of that fact. More work should be done to ensure that the charter is given greater publicity, so that people will know how changes to their lives could take place. The blame for that lack of awareness lies partly with the media, but politicians and the Government must take overall responsibility for failing to take the issue to the people and consult more widely.
§ 12.8 pm
§ Mr. Richard Spring (West. Suffolk)
I warmly congratulate the hon. Member for Bridgend (Mr. Griffiths) on securing today's debate. I also congratulate all hon. Members who have participated. The previous debate on the issue took place on 16 February. Then, as now, both sides of the House approved of many of the principles on which the charter was said to be based. Fundamental rights must be guaranteed if democracy and individual freedom are to flourish. However, at that time, concerns were expressed about the effect of setting out such wide-ranging principles in that document.
The reason why the British people do not, in the main, feel that their human rights are under threat is that we have developed, over a thousand years, a legal tradition that protects those rights. Over time, the balance of rights has been shifting gradually towards the individual citizen. Those rights are not set down in a written constitution or declaration but have evolved through British common law and are based on common sense. The charter cannot claim to have been based on such common-sense practice. We could at least have had a charter that bridged the alarming gap that already exists between EU citizens and EU institutions—by significantly improving the specific right of redress, for example. A key function of fundamental rights is, after all, that of protecting citizens from over-mighty or intrusive Government authorities. A charter protecting Europeans from overbearing EU bureaucracy would have been widely welcomed, but unfortunately this charter will not achieve that.
88WH It is worth noting the predictions that the Minister made during our debate in February, which give an indication of the validity of reassurances he might make today. He said:New rights will not be added.—[Official Report, Westminster Hall, 16 February 2000; Vol. 344, c. 241WH.]Perhaps the Minister could explain why, in that case, the French European Minister is, to name but one, so misinformed? That Minr said in Strasbourg on 3 October:Quite obviously, the charter does not only reaffirm pre-existing rights. It enshrines many new rights.Why also was Mr. Moscovici able to welcome the charter asthe greatest collective advance, as far as the affirmation of social rights is concerned, since the beginning of the European enterprise?
§ Mr. Spring
It certainly has something in common with the Government that the hon. Gentleman supports.
The Minister went on in that debate in February to tell us that the drafting body would ensure that there was no duplication with the convention on human rights. In fact, there is a huge amount of duplication. Indeed, the Council of Europe's observers have now warned that the charteris bound to take on a dynamic which is almost certain to affect the harmonious and consistent interpretation of fundamental rights.They go on to warn of the danger of decisions of the European Court of Justice being at variance with those of the Strasbourg court, putting members states in "a very awkward position".
It is, however, on the far more central point of the charter's legal effect that the Government's assurances have proved especially misleading. Ministers told us that they had made sure that the charter would not be incorporated into the treaties and briefed the press to that effect. We now know the real value and weight of those assurances because almost every legal and political expert outside Whitehall has made it abundantly clear that the charter will have a major impact on national law even it if is not incorporated in the treaty. The European Commission could not have been clearer about that. It stated:It is reasonable to assume that the charter will produce all its effects, legal and others, whatever its nature.In case the Minister and others did not get the point, the Commission document continued:It can reasonably be expected that the charter will become mandatory through the court's interpretation of it as belonging to the general principles of Community law.So much for the Minister's reassurance that the charter's effect would be equivalent to that of the Beano or that the document could take the form of a small pledge card.
Less than a month later, the vice-president of the European Court of Human Rights emphasised the same point, saying:The fact is, whether the charter is declaratory or not, it will be a source of inspiration and reference, in domestic courts and the European Court of Justice.89WH The Council of Europe's observers have stated that it is "highly probable" that the charter willgenerate a far higher number of references for preliminary rulingsthan the European Court of Justice presently receives. The vice-president of the convention that drew up the charter went on to point out that, before it had even been completed, the charter had already been cited four times as a source of European values by the group of wise men investigating Austria. So the Prime Minister's solemn assurance after the Biarritz summit that the charter would not impact on national law was far from the reality. The Prime Minister was wrong, and that is not the only Government claim that has gone awry. We were told that the charter would set out only those rights already included in European legislation, but that is not the case. It includes not only several rights from the European convention, social charter and ECHR case law, but also rights said to have derived from member states' national laws. How does that meet the Minister's aim, as stated on 16 February, that the charter should explain exactly how people benefit from membership of the European Union? How does the right to strike, for example, derive from EU membership? What will be the effect of setting out such rights in a document that will influence the judgments of the ECJ?
§ Mr. Richard Spring (West Suffolk)
I beg the indulgence of hon. Members as there are only a few minutes available and I want to make a number of points. I apologise to the hon. Lady, although she was not, I believe, present and participating earlier.
If the charter is intended solely for EU institutions, perhaps the Minister could explain precisely which EU institution is the intended target of article 19, which prevents member states from extraditing criminals to countries where they might be subject to the death penalty? In February the Minister told hon. Members not to get carried away with seeing the charter of rights as a European constitution. Perhaps he should address his remarks to EU ministerial colleagues on the continent, many of whom have called for just that.
We now learn that another intergovernmental conference is being planned to take place once the general election is safely out of the way. Its specific task will be to start work on a European constitution, with the charter featuring as a possible preamble. That will result in a charter that the courts will use to interfere more in national law, especially in the area of social and employment policy, and transfers yet more power to make choices from elected representatives to unelected judges. The Minister compares the charter in importance to the Beano, but the European Commission says that it will mark a turning point in the integration of Europe, moving it away from the essentially economic logic of its origins towards becoming a real political union. When the Government's claims are refuted so comprehensively and dramatically by every independent legal and political opinion, who are we to believe? Sadly, on past performance, not the Minister.
The people of Britain have enjoyed comprehensive protection in what is one of the most liberal and tolerant societies in the world. We have done so with a legal system that has clearly limited the role of the judiciary in 90WH politics. Parliament has always been central to that. The charter will simply speed up the process of judicial involvement in our national life, and further alienate people from European institutions. It will make many lawyers rich and busy, and it will make our laws increasingly judge-driven, which is certainly more than the Beano ever sought to do.
§ The Minister for Europe (Mr. Keith Vaz)
Thank you, Mr. Deputy Speaker, for giving me the opportunity to respond to this excellent debate. I pay tribute to my hon. Friend the Member for Bridgend (Mr. Griffiths) for the enormous amount of work that he has done on the charter drafting committee and for securing a debate to allow other hon. Members to join a discussion on this important document.
I welcome the speeches of my hon. Friend the Member for Hull, North (Mr. McNamara) and the hon. Member for Winchester (Mr. Oaten). It is right that we should mention that the delegation to the convention was an all-party delegation, as was demonstrated by the excellent contribution of the hon. Member for Eastleigh (Mr. Chidgey). We must also pay tribute to the noble Lord Goldsmith and the noble Lord Bowness who is, I believe, a member of the Conservative party. That all-party delegation was important, because it was good that, yet again, we were represented by first-class parliamentarians in a European forum.
As usual, although they have done an excellent job, there are still voices of criticism. I was going to call them the four horsemen of the apocalypse, but only two turned up today: the hon. Member for Buckingham (Mr. Bercow), who has since got on his horse and ridden away, and the hon. Member for Ludlow (Mr. Gill), whom he has left behind. They jumped up and down as if they were chihuahuas at the Battersea dogs home, interrupting everyone, lovingly looking for potential owners, and leaving me only a few minutes to dispel the myths put forward by the Opposition.
The hon. Member for West Suffolk (Mr. Spring) should really have written his speech after he heard the speech made by my hon. Friend the Member for Bridgend, rather than before. If he had done so, he would have heard my hon. Friend and the hon. Member for Eastleigh deal with all the points that he made. They—along with the hon. Member for Winchester (Mr. Oaten)—set out clearly the intentions of the charter and what we hope that it will achieve.
We should consider the five key myths to which Opposition Members and others referred. First, the hon. Member for Ludlow said that the charter represented the beginning of a European constitution. If a telephone directory were published in Brussels, the hon. Gentleman would believe that it was the forerunner of a European constitution. We are not going to have such a constitution, so I am happy to deny categorically his statement. The charter is, as it claims to be, a political declaration of rights and principles that exist in the European Union. I must tell him that the shadow Foreign Secretary, the right hon. Member for Horsham (Mr. Maude) signed up to it. The Union was founded onthe principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law.91WH Who signed the document that contains that phrase? The shadow Foreign Secretary, in his own hand. I was under the belief that only Labour Members believed in fundamental human right, but have discovered that the shadow Foreign Secretary believes in them too.
The second myth perpetrated by Opposition Members was that new rights were created by charter drafting committee. That, of course, is nonsense. My hon. Friend the Member for Bridgend, the hon. Member for Eastleigh and their colleagues ensured that the principles and rights that are recognised in the European Union were adopted in the charter. The committee has no mandate to extend the law of this land, and it knows that. My hon. Friend was at pains to explain to the House the necessity of maintaining existing rights and principles—and that is what happened.
§ Jean Corston (Bristol, East)
In response to the point made earlier about the right to strike, does my hon. Friend the Minister agree that there has been a right to strike in common law for a long time. It has long been the case that any act that would otherwise be illegal is entirely legal if committed in contemplation or furtherance of a trade dispute. Did not the agreement made at Maastricht simply consolidate that?
§ Mr. Vaz
Exactly. The point was made on previous occasions. Indeed, the employment protection legislation passed by the Conservative Government in 1992 enshrines those rights.
Thirdly, Opposition Members asked whether the charter would be binding. I appeared recently on the "Today" programme with the shadow Foreign Secretary, when I suggested that he would have to eat the charter if it were incorporated in the treaties. He was convinced that it would be incorporated into the treaties and would be judicially binding and that, as a result, the sky would fall in. I went to the conclave meeting in Brussels on Sunday night and—to emphasise the point made by the hon. Member for Winchester—I took a head count of the Ministers for Europe and Foreign Secretaries. It was basically even-stevens between those who supported incorporation and those who did not. The opinion that the United Kingdom has a minority view on that issue is absolute rubbish. Many countries do not believe that the document should be incorporated into the treaties, as my hon. Friend the Member for Bridgend stated.
§ Mr. Vaz
Before the hon. Member for West Suffolk asks me about the Beano, I mentioned it because I know his usual reading material, and was trying to keep matters simple for him. The document will not be binding; indeed, it will be a declaration surrounded by 92WH gold stars, as the Prime Minister, the Foreign Secretary and I have said until we are blue in the face. It is not going to happen.
§ Mr. Spring
I am afraid that, characteristically, the hon. Gentleman has missed the point. The guarantee that we were trying to establish was whether it would be incorporated in the treaties or be legally enforceable? I was trying to tell him that it will be legally enforceable. That is the guarantee that we sought, which he has signally failed to deliver.
§ Mr. Vaz
It will not be legally enforceable. After the debate, I will give the hon. Gentleman a list of lawyers whom he can consult, and who will be able to advise him. As my hon. Friend the Member for Hull, North said, the declaration will be proclaimed at Nice. That will be another victory for the superb negotiating of the UK delegation. What a pity that the Conservative party cannot support the good work done by some of its members.
What is the fourth euro-myth? It is that everything has been done in secret. As my hon. Friend the Member for Bridgend pointed out, the great exclusive in The Times was also available on the worldwide web. Everybody could read the deliberations of the drafting committee, because they were accessible to all. The hon. Member for West Suffolk has made several criticisms of the charter. Did he write to my hon. Friend the Member for Bridgend, who was on the drafting committee, with his suggestions for improvements?
§ Mr. Spring
Those points were made by Conservative Members of the European Parliament who were involved in the convention. If the Minister does not know that, he is also in ignorance.
§ Mr. Vaz
The shadow Minister for Europe has told us, in a roundabout way, that since February this year he has not taken a single opportunity to write to a member of the drafting committee to express his views. That sums up the attitude of the Conservative party.
What is the last euro-myth? It surrounds whether the charter will amount to anything more than a showcase. Is it a launch pad for something new, if not an EU constitution then something else? Of course it is not. It is a showcase of existing rights. All democratically elected Members of Parliament should want to make sure that citizens of this country know their rights. We want to make sure that the charter is celebrated, so people are aware of what is happening. That is why we welcome the charter. It will be proclaimed at Nice, and we will support its provisions and debate its importance for 93WH some time to come. What is the Conservative party's argument? The hon. Member for Ludlow referred to a speech from a Belgian Foreign Minister who was not even a member of the convention drafting committee. The hon. Member for West Suffolk—who probably cannot even spell Moscovici—told us about the French Minister for Europe. Of course they are entitled to their views. There are 300 million people in the European Union, and every Minister in every Government is entitled to his or her views—we live in a democracy. Ultimately, however, decisions on the charter are made by member states—by Prime Ministers and heads of Government, sitting at Biarritz, as they did in their informal meeting, and now at Nice.
On the issue of a European army, the Leader of the Opposition said that if it sounds like an elephant and looks like an elephant it must be an elephant. The Leader of the Opposition would not know an elephant if it sat on him. The EU force to which we shall be contributing has the support of NATO and of all our allies.