12th July 2012: Andrew Brons made the following speech during a debate in the Constitutional Affairs Committee (AFCO) yesterday on whether the European Parliament should call upon the European Council not to examine the proposed amendment of the Treaties to take account of Protocol 30* in respect of the application of the Charter of Fundamental Rights to the Czech Republic.

He said:

"There are superficially compelling arguments in favour of this proposal:

1. the Czech Government has been rather half hearted in its application and has pursued it:
- (a) because it feels that it should not be denied what the European Council has promised it; and
- (b) because it does not wish to be seen as indecisive.

2. (The second compelling argument is) that it is very unlikely that the two chambers of the Czech Parliament will ratify the Protocol with the necessary qualified majorities.

3. The Court of Justice decided in N.S. against the U.K. Home Secretary in December 2011 that the Protocol: did not exempt Poland or the UK from the obligation to comply with the Charter or prevent the courts in those member states from ensuring compliance with it.

"However, the Advocate General had earlier said that the Charter did not shift power at the expense of the UK or Poland, whatever that might mean.

"I do not think that the first two reasons are at all convincing. We cannot avoid fulfilling an obligation, because we believe that the promisee does not wish to make use of that obligation. For as long as the promisee asks for it to be fulfilled, the promissor must fulfil its side of the bargain.

"The third reason can be summed up as saying that we should not feel obliged to provide something that is probably of little substance and is probably of only nominal value. That is the equivalent of saying that obligations to pay nominal values are of no effect. Yes they are. The obligation remains.  Furthermore, the Court of Justice has only said what the Protocol is not; it has not defined what it is, so we do not know the extent of its nominal value.

"The Protocol was apparently agreed at an Inter-institutional Conference in 2007 and the European Council was an important element in that Conference. It is not for the Parliament to tell the European Council to renege on its obligations.

"However, a failure of this proposal will not be that the European Council will take steps to amend the Treaties. It will simply be that the European Council will have to consider doing so. Perhaps during that consideration we can unearth what the Protocol means and what was the intent behind it.

"Mr. Duff in his last paragraph expresses his dismay at there being any possibility that the scope of the Charter might be limited. However, until and unless the question is considered we will not know."

Andrew's explanation and Comment:

* Before the Parliaments of the United Kingdom and Poland ratified the Lisbon Treaty, they insisted that a 'Protocol 30' was attached to the Treaty to indicate that there was a different application of the Charter of Fundamental Rights to those countries.

The UK Prime Minister at the time, Tony Blair, described Protocol 30 as an 'opt-out'. When the Czech Republic later ratified the Lisbon Treaty, it demanded that the same protocol should be attached to the Treaty. However, in the meanwhile there has been a case before the European Court of Justice in which it was decided that Protocol 30 did not constitute an 'opt-out'. The response of those who were never in favour of the Protocol is to say that the Protocol does not now need to be considered by the European Council (heads of government and state).

My response is to say that the UK Parliament's ratification of the Lisbon Treaty was obtained by a falsehood from Mr. Blair that Protocol 30 was an 'opt-out'. If the European Council should be persuaded to consider the Treaty changes to incorporate the Protocol, that trickery would be exposed.