Rt Hon Lord Lilley

    Date of Proceeding: 05.02.2008
    Reference: 471 c838
    Member: Lilley, Peter
    Title: Lisbon Treaty (No. 3)
    Description: It is a pleasure to follow the right hon. Member for Oldham, West and Royton (Mr. Meacher). He made an important speech that exemplified the extent to which rights, or at least some rights, are essentially political and economic in their origin and their importance. It should therefore perhaps be political and economic matters that lead to their definition and implementation.

    All parties and all Members in this House are in favour of basic human rights-what we normally mean by human rights, which do not extend into the sphere of certain economic rights. All parties have always supported human rights, yet successive Governments have opposed the implementation into treaty law of a charter of human rights. Why is that? Why have successive UK Governments, including this one, opposed the implementation at a European level of a justiciable charter of human rights?

    The matter would be clearer if the Government would do as I asked in my point of order at the start of the debate. For the convenience of the debate, they should table information about the positions that they took during the negotiations on the European constitutional treaty and the European Convention. Only then will we be able to see clearly what is from time to time referred to by those who are more knowledgeable than the rest of us-notably my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory), who participated in that Convention. I hope that either now or when she sums up, the Under-Secretary of State for Justice, the hon. Member for Lewisham, East (Bridget Prentice), will promise that in future, each day, alongside all the other documents that are supplied to inform our debates, we will have on the Table the resolutions that the Government moved and the terms in which they moved them during the Convention, so that we will know what the Government’s position is or was.

    Mr. MacShane: Is the right hon. Gentleman aware that during the negotiations on the constitutional treaty-the one that the French and Dutch killed off-the Government set up a Special Standing Committee of both Houses of Parliament and invited every right hon. and hon. Member and peer to attend to hear from negotiating Ministers what was being said? Not a single Member from the right hon. Gentleman’s Front Bench turned up to one of those meetings.

    Mr. Lilley: I am not certain that that is true. I turned up to those meetings frequently. They were meant primarily not to allow Ministers to report back but to allow the Members of this House who were sent to the Convention to report back, as they did. Both my right hon. Friend the Member for Wells and the hon. Member for Birmingham, Edgbaston (Ms Stuart) reached the conclusion that the constitution was not in the interests of the House, and that constitution was fundamentally the same as the treaty that is before us now. The right hon. Gentleman has scored an own goal by referring back to that Committee.

    Mr. Cash: I am sure-I cannot believe that the right hon. Member for Rotherham (Mr. MacShane) does not recall this-that I attended every single one of those proceedings as shadow Attorney-General.

    Mr. Lilley: Game, set and match, I think, to my hon. Friend.

    Mr. Clappison: Must not that meeting have taken place before the meeting of the European Scrutiny Committee of 7 June last year, when the then Foreign Secretary told the Committee that nothing was happening and that there was nothing to discuss?

    Mr. Lilley: My hon. Friend makes an extremely pertinent point with great crispness, as he has throughout these debates.

    The reason, I suggest, that successive Governments of both parties have opposed the implementation in European treaties of a charter of fundamental rights and sought, even this time, to block its effect with a protocol is because we in this country have a pragmatic approach to human rights. We recognise that rights are not absolute. Each human right has to be balanced against another. Free speech has to be balanced against the right to protect one’s reputation through the libel laws and so on. Somebody must decide the balance between those rights and, in the past, after the initial interpretations of the courts, this House has decided. Often, deciding the balance has been an intrinsically political decision. I think that that is the point that my right hon. and learned Friend the Member for Kensington and Chelsea (Sir Malcolm Rifkind) was making.

    The rights as laid down in the charters and conventions are necessarily vague, imprecise and general, so somebody-or some body-must explicate them in accordance with the detailed circumstances in which we find ourselves; they must relate those generalities to the complexities of the life that we live. Some body must do that. In the past, this body, the Houses of Parliament, has ultimately spelled out what rights mean in detail rather than leaving such decisions to general statements from a different body of people: judges, who are unaccountable to the electorate.

    Once we allow lawyers and courts to have the last say, rights will mean what the court says that they do. They will not mean what we thought when we signed up to those rights, or what the people who originally drafted them meant. They will mean what the court says. If that court is the European Court of Justice, there will ultimately be no recourse except in the extreme circumstances when all 27 members can agree to override the Court and change the rights or the constitutional treaties that govern us. That is unlikely and we cannot rely on it.

    I recall an example of how important the discretion of the Court was. Normally, people would expect me to be hostile to the Court. However, on one occasion it was set to adjudicate on a claim brought against the British Government on pension law. It was an extremely important case and £5 billion of tax revenue hung on it. If the decision had gone against the British Government, we would have had to recall Parliament during the recess and bring in new taxes to replace the £5 billion of lost revenue. I had to report to Parliament during my preparations for the event and the Law Officers had to report on the likely judgment that we could expect. They reported that in their view, according to all the legal advice and in the opinion of both the prosecution and the defence, the British Government would lose the case.

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    I ventured, rather timidly as a non-lawyer, to suggest to my Cabinet colleagues that the Law Officers had overlooked one thing: the ECJ, although it is a court of justice, is a political court and will always put the interests of the EU first. It was in the interests of the EU not to upset the apple-cart. At that point, we had not ratified the Maastricht treaty. It would have been hugely difficult to ratify the Maastricht treaty if Europe suddenly deprived us of £5 billion in tax, and forced the Government to recall Parliament in the summer to pass £5 billion-worth of new taxes. I confidently asserted that all the lawyers were wrong and that the ECJ would take the politic decision and uphold our position. It did. After that, different Departments from Whitehall used to come and consult me about legal matters because they seemed to think that I had an inner judgment about what would happen.

    We need to remember that the ECJ will have the last say on what rights are. It will make those decisions politically, but without any recourse to the electorate-unlike us.

    Mr. Heathcoat-Amory: My right hon. Friend is making an extremely effective point. I remind him that the situation will get worse under the treaty. Under article 9, paragraph 2, the ECJ will have to practise mutual sincere co-operation with the other EU institutions, which exclude member states. Any bias that he detects will be redoubled if the treaty is ever ratified.

    Mr. Lilley: My right hon. Friend makes an extremely good point that explains why we should look very carefully at what is happening and why, in the laughably short one and a half hours that we have to consider the amendments this evening, we should take every opportunity to amend the Bill. In that way we can try, to the extent that it is in our power, to prevent the greater dangers that lie ahead.

    The other aspect of leaving the balancing and explication of different rights to the Court rather than to the parliamentary process is that we cannot amend decisions when circumstances change or if we find that they are not what we wanted or what our constituents feel to be fundamentally fair, reasonable and right. The fact that we cannot amend them means, in turn, that we cannot take risks with them.

    Those hon. Members who have expressed concern about economic rights should know that I would feel far more confident about granting economic rights to workers, say, if I knew that they could be withdrawn if they did not work out to their advantage. For example, I might fear that a change might turn out to price people out of a job rather than increase their well-being. If I knew that it could be revised, I should be much more willing to be generous about trying it out in the first place. Therefore, we have a choice: we can either throw caution to the winds, leave all decisions to the ECJ and hope that everything turns out all right, or we have to be terribly cautious about granting specific economic and other rights, for fear that we cannot change them if they work out badly. Whatever one’s position in these matters-whether one sides with the Labour Members who have spoken in the debate or with the neo-liberals to whom they have referred and of whom I assume that I am one-I urge the House to say, “Yes, we believe in rights, but ultimately they should be
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    defended, protected, developed and evolved by the parliamentary process and not by a foreign jurisdiction over which we have no control and to which there is no recourse.”

    6.32 pm