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Lord Neill of Bladen: My Lords, I am grateful to the Minister for that information.

Baroness Scotland of Asthal: My Lords, I want to set out the general policy. As regards the Government's policy on the charter, I confirm that there is and has been no change in our position. We have always welcomed the idea of a statement of rights and freedoms which should be respected by the Union's institutions. It is a matter of public record that we welcomed the charter in 2000 as a political declaration for that purpose. We made it clear then, as indeed I did throughout the convention, that we could not accept that the charter, in the form agreed at Nice, was drafted in a way suitable for incorporation into the treaties.

Our reasons were simple. They accord, if I may say so, with the findings of the distinguished committee whose report on the charter is the subject of the debate. Readability and legal precision are, alas, seldom natural bedfellows. It was clear from the exposition given by the noble and learned Lord, Lord Scott, why in this instance that was so. What is suitable for a

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political declaration is not always suitable for the law. Frankly, the charter lacked legal precision. If one looked only at the bare language of the charter articles, one would receive the impression that there was a wholly new catalogue of rights, going well beyond the agreed powers of the Union and competing with existing agreed rights. Like the noble Lord, Lord Neill, we could not accept that that was correct. I think that I heard a modicum of agreement in what was said by the noble and learned Lord, Lord Scott of Foscote.

There were two obvious alternative solutions to the problem. One could leave the charter as a political declaration, or one could amend the text of all the charter articles so as to bring about the necessary legal clarity. The overwhelming majority of our European partners, like the distinguished committee, take the view that the charter is an indispensable part of the new constitutional treaty. They also regard amendment of the charter articles as unacceptable and likely to do more harm than good. In short, both the obvious solutions to the problem that I described appeared to be unconscionable, or otherwise outwith the art of the politically possible.

I am glad to say, however, that it was possible to persuade our partners as to the merit of a somewhat more subtle approach, to wit to amend a part of the charter which does not contain statements of the rights. I am referring, of course, to the special rules about interpreting the charter which are to be found at the back of the charter in Title VII. I am pleased to say that our partners also proved amenable to work on the legal explanations concerning each charter article, as issued by the presidium to the original convention. I should add that, in the final outcome, I also found that our European partners were able to agree to elevate the legal status of those explanations, which have also been referred to by a number of noble Lords.

Virtually all noble Lords who have spoken said—it was mentioned last of all by the noble Viscount, Lord Bridgeman—that the explanations were extremely important so far as clarity was concerned. Making reference to them in the charter's introduction to Part 2 of the constitution is therefore a very important step indeed. The result is a charter which, on the surface, looks rather as it did at Nice in 2000, but which in fact forms part of a much more solid package. It is now much clearer, as a matter of law, that the charter in large part reflects existing rights in the ECHR and Community law. Where it does reflect them, it can mean no more than do those provisions. Where the charter goes beyond them, Title VII and the explanations help us determine how the courts are to treat charter provisions; for instance, as principles rather than rights, or in harmony with the common constitutional traditions of the member states.

Perhaps I may turn to the detail, because a number of noble Lords have indicated that that would be of interest to them. Substantial amendments have been made to Title VII of the charter, which is now entitled General Provisions Governing the Interpretation and Application of the Charter. Those amendments perform several important functions.

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First, the changes to the wording of Article 51 further clarify that the charter does not extend the Union's powers and tasks. Then there are three substantive additions to Article 52. Article 52(4) requires rights resulting from the constitutional traditions common to the member states to be interpreted in harmony with those traditions.

Lord Scott of Foscote: My Lords, I thank the noble Baroness for allowing me briefly to intervene. I received a document on 20th June—that is, today—which set out the text of Article 51. Would that have incorporated the amendments to which she refers or would it not?

Baroness Scotland of Asthal: My Lords, it should have incorporated the amendments to which I refer. Contrary to what the noble Lord, Lord Goodhart, said, the convention has not been entirely completed. There are a few days left to perfect and bring certain matters together. There was a little more technical detail still to be finalised.

As I said a few moments ago, Article 52(4) requires rights resulting from the constitutional traditions common to the member states to be interpreted in harmony with those traditions. That is an important addition, because existing treaties already allow the court to infer fundamental rights as general principles of Community law from the constitutional traditions common to the member states. That should be done in a way that shows proper respect for individual national traditions. "In harmony" is a helpful way of describing how that interpretation work should be done. We do not want the court to strike discordant notes in the sensitive area of national constitutional traditions.

Article 52(5) is perhaps an even more significant addition to the charter. It confirms that the charter contains principles as well as rights and it clarifies that such principles become significant for the courts only when Acts implementing the principles are interpreted or reviewed. That provision is especially relevant to the social and economic provisions in the charter, not of all of which are clearly based on agreed existing provisions in Community law. Where that is the case, Article 52(5) helps avoid unnecessary misunderstandings. It is important to distinguish in the charter between references to principles and references to enforceable rights.

I turn finally to Article 52(6). That relates to the various references in the charter to national law and practices. It requires the court to have proper regard to such references—and quite right, too.

The noble and learned Lord, Lord Scott, made many references to the way in which the explanations further define the articles. If I may respectfully say, they are also an important addition. Very significant changes have also been made to the contents and status of the technical explanations, which address the legal basis for the charter's provisions. The explanations are now to be in the draft constitution as requiring the attention of the courts. They were formerly presented as having no legal value. They have

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been enriched in the light of the amendments made to Title VII. The United Kingdom and others were consulted about these changes, and we have suggested several further improvements. I expect the final version of the technical explanations to be issued at the end of next week, once the praesidium of the convention has approved them.

Noble Lords would not expect any lawyer, let alone me, to agree to anything without reading the fine print first. The fine print on the charter is not yet fully available. However, there is some cause for cautious optimism. I am encouraged by the changes already made to the explanations. For example, I liked the reference to the leading case of Annibaldi as regards interpretation of the phrase in Article 51 about implementing Europe Union law. I am also attracted to the various clarifications of individual articles; for instance, what is said about Article 21. That is a big step in the right direction, and that article was properly alighted upon in the comments of the noble and learned Lord, Lord Scott of Foscote.

The Government will reach a final decision about the incorporation of the charter in the context of the forthcoming intergovernmental conference. In the form in which we have got it, it may be seen much more clearly as a limitation on the powers of the EU institutions; member states would be affected only when they are implementing Union law as set out in the rest of the constitution. The charter should be welcomed as an important means of making sure that our traditional rights and liberties are respected whenever the Union acts under the powers member states have given to it. However, our work is not done yet. Before Her Majesty's Government are in a position to take a definitive view, that work must be completed.

I turn now to specific issues that were raised in relation to the sub-committee's work. To the noble Lord, Lord Goodhart, I say straight away that we have no intention of overlooking the work of Sub-Committee E. On the contrary, I hope that it will give noble Lords a great deal of pleasure to know of the high esteem in which the committee's work is held by the authorities, both here and in Brussels. The report we are debating today was made available to every member of the convention, and was referred to on several occasions by distinguished interlocutors there during the debate.

The timing of this debate has enabled the House to have the final proposals regarding the charter, and thus for your Lordships' views to influence what happens in relation to Her Majesty's Government's position in the forthcoming IGC. I make particular reference to the noble Lord, Lord Tomlinson, who was one of the representatives of the House in the convention, because it was he who, seeing the great value of the content and erudition of the report, thought it incumbent upon him to ensure that every member of the convention had the advantage of it, and formally submitted it into the evidence produced for the convention's consideration. Your Lordships certainly have not worked in vain.

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I turn now to the remaining two matters; first, to EU accession in relation to the ECHR. As our response to the sixth report of the committee indicates, we have no great objections in principle to the EU joining the ECHR, but it must be done in a way that does not prejudice national positions. Our reasons are these and they are more than mere technical points. They are concerned with the impact that accession may have on EC/EU competence as regards the position of individual member states concerning the protocols, reservations and ability to derogate.

Although I can see some possible way forward on the issue of competence, I am not clear about the answer on national positions. At this stage, we do not know precisely how the relationship between the ECHR and the ECJ would work in the event of accession.

The noble and learned Lord and the noble Viscount, Lord Bridgeman, referred to Article 230(4) and specifically to the implications of the charter for judicial remedies. That matter was taken up by the noble Lord, Lord Goodhart. Future provisions regarding the European Court of Justice are set out in Part 3 of the constitution. This part is due to be debated by the convention soon. A small and narrowly focused amendment to what was TEC Article 230(4) is proposed, under which a lacuna in the current system is closed.

The effect of this is a very limited extension of the rule in individual access. It now states:


    "Any natural or legal person may, under the same condition, institute proceedings against an act addressed to that person or which is of direct and individual concern to him, and against a regulatory act which is of direct concern to him without entailing implementing measures".

That retains the text of direct and individual concerns, but allows the individual to attack measures which do not involve implementation as such. And this is the legal lacuna in the current standing rules. Personally, I am not convinced that we need this, but I am listening to the arguments in my usual way.

I know that some would have liked to see more than this limited extension, but we must not forget that national judges are also judges of Union law and that the whole system relies on the principle of subsidiarity. It would be wrong to think in terms of replicating a complete national system at Union level, and we genuinely believe that justice should be kept as local as possible.

We think we have come a long way from the position we were in when the charter was a political document and there may be a little further to go. But the IGC will enable us to complete the journey.

2.48 p.m.

Lord Scott of Foscote: My Lords, on my own behalf as well as on that of the sub-committee I had the honour to chair, I thank all noble Lords and noble Baronesses who have spoken. The comments have been extremely pertinent and will be of assistance to us in the further scrutiny exercises that we shall undoubtedly have to carry out in regard to revised drafts that come forward. I am most grateful.

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I would like to pick up one or two points made by the Minister. As regards the proposed amendment to Article 230(4), when I addressed your Lordships earlier I expressed my difficulty in understanding what was meant by the words used in the addition, but the Minister has given no assistance on that point. I am not pressing her to rise and give it now because one would need to sit down with a towel around one's head in order to understand it. However, I would be grateful if she could consider the point and perhaps write a letter saying what she or the Government believe it means. Until we know what it is intended to do, we cannot react to it as a scrutiny committee.

The Minister said that the explanations that accompany the articles of the charter will find their way into the constitution. I know that there is the reference to the explanations in the preamble, but I do not know whether they will be referred to elsewhere or whether that is what she meant by saying that the explanations would find their way into the constitution. They should have as clear a status as their importance in the interpretation of the articles deserves. I am very grateful for the opportunity to have the debate. I thank the noble Baroness for the assistance that she has given.

On Question, Motion agreed to.


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