Michael Meacher

LISBON TREATY (No 3) DEBATE

Mr. Michael Meacher (Oldham, West and Royton) (Lab): The right hon. and learned Member for Kensington and Chelsea (Sir Malcolm Rifkind) made, as always, an eloquent and passionate speech in support of his fundamental view of the protocol insulating the UK from the justiciable effects of the charter. I start from a very different position on the application of the charter of fundamental rights, so I shall not attempt to counter his arguments.
I regard this debate as one of the most important on the treaty, because the charter of fundamental rights, the decisions of the European Court of Justice and the tenor and direction of several EU directives are central to the issue of a social versus neo-liberal Europe, which lies at the heart of the European project.
The charter raises two immediate questions. Although I listened to both Front Bench speeches, I am still very puzzled about why the Government are so adamantly opposed to the application of those rights in this country, especially as every one of the other 26 member states has accepted them without demur, including both right-wing and left-wing Governments. A pragmatic answer—although I am struggling to find an explanation—might be that the charter would ban excessive working hours. The British worker works more hours a week than anyone else in Europe and the CBI would like to keep it that way. It would also permit secondary action in industrial disputes, but at present British workers cannot take such action, although employers can. No doubt the CBI would like to keep it like that as well. The right to take secondary action has never been an issue in any other country in Europe, although it has had enormous implications in this country.
Mr. MacShane: Does my right hon. Friend accept that the German constitution forbids some 1.5 to 2 million civil servants and public sector employees from even going on strike? It is the Germans who insisted on many of the safeguards—the so-called lateral or horizontal safeguards—being put into the charter before the protocol question arose, to preserve their ban on strikes, which is far more draconian than anything in the UK.
Mr. Meacher: I agree with my right hon. Friend. I am simply searching for an explanation and it may be that I have hit on the wrong one. I hope that I have,
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because none of the explanations that I can think of appears to carry much weight. If it is a matter of keeping the CBI sweet, I suggest that that is not the job of a Labour Government. Nor is it the responsibility of a Labour Government to implement what Tony Blair, the former Prime Minister, once commended to a business gathering as
“the most restrictive trade union legislation in the Western world”.
We inherited that from the Conservatives.
It is shameful that we are not proud to welcome the charter of fundamental rights into our own legislation, which every other nation in Europe has taken in its stride as the foundation of a civilised society. I cannot see what the problem is. We have continual discussions about whether it will make a difference, and I am not sure that it would, but I cannot see why we object to implementing it.
It is far from clear whether the charter will affect UK law. The Government allowed the charter to be made legally binding, but then put forward a protocol that, they argue, will prevent the charter from affecting UK law or at least will limit its impact. However, others have queried the status of the protocol. The Swedish Prime Minister said on 26 June last year that the UK had accepted that the charter was legally binding, which is certainly true, and then added:
“It should be stressed that the UK was given a clarification, not an opt-out”.
Significantly, when Tony Blair was presenting the protocol to the UK Parliament on the day before, he misread the text —[Interruption.] Well, I assume he misread it. He said that
“nothing in the Charter creates justiciable rights applicable to the United Kingdom”—[ Official Report, 25 June 2007; Vol. 462, c. 21.]
However, the text of the protocol actually says:
“Nothing in Title IV of the Charter creates justiciable rights applicable to the United Kingdom”.
The clear implication is that although one section of the charter cannot be used to create new rights, other sections almost certainly will be. In that respect, I am sympathetic to some of the arguments coming from the Opposition side. But even in respect of title IV on social rights, the text of the protocol states explicitly that the charter does not create justiciable rights applicable to the UK—and several people have quoted this—
“except in so far as the UK has provided for such rights in its national law”.
It will presumably be left for the European Court of Justice to decide for itself whether the UK has attempted to provide for such rights in its national law and to decide whether the attempt to provide such rights is adequate in the light of the charter. Indeed, it is very difficult to see how this discrete carve-out, so methodically prepared, can work in practice. Firms operating in one member state will be affected, but if they operate in more than one member state, the charter will clearly apply. Migrants coming from another member state to the UK would presumably still be covered. Anyone who travelled to another member state from this country—for health services, for example—would presumably be able
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to use the charter. Moreover, there are 30 years of EU jurisprudence to say that there can be no two-tier system of European rights.
Jon Cruddas: On the issue of title IV rights versus title II rights, is it not the case, given the protocol, that the European Court could interpret the economic rights under the latter as having precedence in this country over employment rights in the former?
Mr. Meacher: That is indeed quite possible. My hon. Friend makes a very important point.
Jon Trickett: May I draw my right hon. Friend’s attention to Tony Blair’s speech to the CBI in November 2003, in which he explicitly said:
“On issues like...agency workers, Europe must think first and foremost about jobs and competition”—
namely, free markets? Is it not clear that the former Prime Minister gave primacy to competition over social protections?
Mr. Meacher: I very much agree with what my hon. Friend says, and I am sure that he will pursue it at greater length later in the debate.
What I find most sad and perverse about this whole sorry saga is that, over time, this claimed uniqueness for the UK will almost certainly increasingly unravel. It will be eroded by ECJ judgments, which are quite likely to happen, and also by the interactive knock-on effects between title IV and the other parts of the protocol. It seems to me tragic that the Government are investing such enormous legal and logistical resources in resisting something on which they are all too likely to lose in the end, yet which every other country in Europe has decided is practical and desirable. I simply do not understand why the Government have got themselves into that position unless it is fear of the Eurosceptic press. That is the only other consideration that I can think of, but I hope that that is not the case.
For any Labour Government, enforcing a justiciable charter of fundamental rights should be integral to securing a social Europe to counter the neo-liberal orientations of the EU treaties. That is starkly illustrated by the Viking and Vaxholm cases, which were mentioned earlier. Two months ago, the Swedish and Finnish unions sought to prevent companies from massively undercutting pay rates by paying foreign workers up to 60 per cent. lower wage rates. However, the ruling was—this makes it so interesting and important—that although there was a fundamental right to take collective industrial action, such action represents a restriction on the employer’s right of freedom of establishment. Of course, industrial action by its very nature will be an obstacle on the activities and freedom of the company. In other words, an employer’s right to freedom of establishment trumps the union’s right to strike. That is worryingly reminiscent, if I may say so, of the infamous judgment in the Taff Vale case of 1901. The Taff Vale railway took the Amalgamated Society of Railway Servants to court for having the audacity to go on strike. The crime was known then as being “in restraint of trade”. Perhaps all that has changed is the terminology, because we are now talking about exactly the same point but it is now called freedom of establishment.

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Nor is that an isolated example of the neo-liberal propensities within the EU treaties. The Lisbon treaty adopted the curious word—I had never heard it before—“flexicurity” to give the wholly false impression that if workers embrace flexibility, job security will automatically follow. Some of us might regard that as a contradiction in terms.
Mr. MacShane: “Flexicurity” was developed by the Danish social democratic Landsorganisation. It is a term used in the Nordic countries to describe the combination of job security protection and flexible labour markets, which has allowed Sweden and Denmark to grow. It is a wholly social democratic and progressive concept—not a neo-liberal idea at all.
Mr. Meacher: It is always helpful to have an exegetist of such immense academic knowledge as my right hon. Friend and I bow to his superior knowledge. However, whether he likes it or not, I still think that the term has neo-liberal implications—irrespective of whether it started out like that. The treaty also demands the abolition of what are called
“overtly protective terms and conditions”—
a highly subjective notion, of course—in contracts that supposedly
“deter employers from hiring during economic upturns”.
Despite all the spin about flexicurity—I entirely absolve my right hon. Friend of any accusation of using spin—the detailed language in some parts of the treaty suggests—unless it is balanced by a robust and effective charter of rights—a slippery slope on which it would be easy to slide back to the sort of casualisation and insecurity that we saw in previous decades in this country. That is my central point and bottom line in the debate.
That is all too clearly revealed, to provide one further example, in an EU green paper promoting flexicurity, which says that contractor obligations to monitor employment law among sub-contractors
“may serve to restrain sub-contracting by foreign firms and present an obstacle to the free provision of services in the internal market”.
That just about says it all. The direction of travel is unmistakable.
For a final example, under article III-147 of the old constitution, which remains under the reform treaty, the EU would be given power to enforce privatisation in any area of economic activity:
“A European framework law shall establish the measures in order to achieve the liberalisation of a specific service”.
We have already seen that in action with the EU services directive, which was seeking to extend the private sector into all areas of public service, but at least health care was left out on that occasion. However, a draft EU health services directive was adopted at the end of last year by the European Commission and was designed to create a market in health care.
I conclude that this abundant evidence of the neo-liberal underpinning of the EU treaties is the overwhelming reason why we need a balance to secure a social Europe, not just a market Europe, and why a charter for fundamental human rights is crucial to achieve that balance.