European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Leslie]

Indeed. My right hon. Friend has stolen the punchline that I was building up to, because that is the one example that I thought would surely clinch the argument. Of all the people who really should value the charter of fundamental rights, surely it is the Secretary of State.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Given that the charter has been part of British law for some years now, the case for repealing it must be based on some harm that it has done. I have never heard anyone describe any harm that the charter is supposed to have done to any public interest in this country, so presumably the hon. Gentleman, like me, awaits some examples to justify the proposed change.

[Mr Leslie]

Absolutely. We might hear a different argument from Ministers, but traditionally the Government’s argument has been, “Don’t worry about the charter of fundamental rights; it doesn’t have any effect, it isn’t necessary and we can do without it because it is already there in British law.” It is rather like what the right hon. Member for New Forest West (Sir Desmond Swayne) said in his intervention. Of course, if that is the case, why are the Government deliberately excising it from UK law, and why would they resist new clause 16? The new clause does not even require the charter to be retained—I happen to think that it should be retained—but simply states that Her Majesty’s Government should lay before Parliament within one month of Royal Assent a review of the implications of removing it.

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[Mr Grieve]

I am grateful to my right hon. Friend for his intervention. As I have said on many previous occasions, whatever merits I may have as a lawyer, I am not a parliamentary draftsman. On top of that, I gently point out that, in an effort to get my amendments in early, they were, in the usual way, drafted with a wet towel around my head at about 30 minutes past midnight on the night before Second Reading. I am therefore quite sure that they are all capable of substantial improvement. Indeed, in my experience, it is very unusual for an amendment ever to be accepted just like that, apart from when it adds a comma, particularly in Committee.

Yes, of course there are different ways in which this can be approached. Indeed, my hon. and learned Friend the Solicitor General, with whom I have had an opportunity for a bit of a chat—I shall look forward to talking to him further about this—has made it clear that he thinks I have been a bit too draconian in deleting paragraphs 1, 2 and 3. On the other hand, there are some other things in paragraphs 1, 2 and 3 that I find rather concerning. However, I shall confine myself to paragraph 3 for the moment.

[Mr Kenneth Clarke]

On whether the drafting is entirely right, so far, as far as I am aware, the Government have had absolutely no answer to the extremely clear case that my right hon. and learned Friend has made about the proper way to protect these cases in future. The obvious thing is for the Government to accept these amendments today, because they can come back on Report and start correcting and redrafting amendments to which I am sure that he will be wholly receptive. What I would not welcome is some vague assurances from Front Benchers that they will think about it and then might come back with something on Report. The drafting can be corrected later; the points that he is making need to be confirmed today.

[Mr Grieve]

My right hon. and learned Friend makes a very good point. He highlights the difficulty faced by all Back Benchers, particularly Government Back Benchers, in presenting amendments—namely, the extent to which they should accept assurances from Front Benchers. That largely depends on how detailed the assurance is—whether it is woolly and vague or has some specificity to it. My judgment on whether I might press amendment 10 to the vote will depend on how specific Front Benchers can be in providing an assurance that they recognise that, even if there may be areas that remain to be debated, there is a core issue that must be addressed about the ability to bring a right of action in domestic law based on a failure to comply with a general principle of EU law when it concerns the operation of retained EU law.

Furthermore, because retained EU law has supremacy over domestic law, it must be possible that there might be instances in which our domestic law would have to be altered. The Government cannot then argue that that is an extraordinary thing to do, because they have themselves drafted this Bill in a way that allows for the possibility of UK domestic law being quashed. That will, I hope, be for a temporary period. Nevertheless, I am unable to understand how, during that temporary period, we can end up with a situation where the Government are perfectly happy to allow for the supremacy of EU law but remove the very principles that moderate it, ensure that it cannot be abused, and, in those areas that were within EU competence, provide a framework under which the Government are undertaking to operate unless or until they repeal the bits of retained EU legislation that they are bringing into our law.

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[Mr Kenneth Clarke]

Will my hon. Friend give way?

[Dominic Raab]

I will just make a little bit of progress and then I will give way to my right hon. and learned Friend.

I will address the detail of this by reference to the new clauses and amendments that have been tabled, because they usefully highlight and flag up the different concerns of hon. Members. As a matter of guiding principle, I hope all hon. Members can agree that we should not make changes that exacerbate the risk of legal uncertainty, which I think goes to the point my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) was making in his intervention. Our substantive law will remain the same on exit day, but it would be wrong in principle—indeed, I think we would find it counter- productive in practice—to seek to cling to all the procedural mechanisms that are inherent, intrinsic and inextricable institutional features of EU membership.

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[Dominic Raab]

The hon. and learned Lady makes a perfectly respectable and legitimate point, but I will address it in the context of amendment 8, tabled in the name of the my right hon. and learned Friend the Member for Beaconsfield, and amendment 46, tabled in the name of the Leader of the Opposition, both of which, in different ways, seek to retain the charter of fundamental rights in domestic law after exit by removing subsections (4) and (5) of Clause 5. I understand and appreciate the sentiments behind the amendments. Hon. Members are understandably concerned that as we leave the EU we do not see any diminution or reduction in the substantive rights we all enjoy. The Government are unequivocally committed to that objective. I remind the Committee again of the country’s record of pioneering, defending and protecting human rights standards since well before the EU existed and of our ability as a nation to withstand the darker moments in European history that have touched other less fortunate nations.

[Mr Kenneth Clarke]

My hon. Friend reassures us that even without the charter of fundamental rights the House of Commons can be relied upon. That was the argument when the Lisbon treaty was being ratified. There was a widespread feeling that it was not clear whether it would add anything, but we now see that it has added quite a lot, particularly around privacy law, on which the House had never done anything, and now data protection. The lobbies brought to bear on the House if ever we look at privacy by sections of the media and so on are very considerable. Why are we getting rid of a convention that has done no harm and actually has run ahead of this House of Commons at various stages? What will be gained by not leaving open that opportunity for the future?

[Dominic Raab]

I will come shortly to my right hon. and learned Friend’s substantive generic point and also touch on the data protection issue he raised.

The Government reaffirm and renew our commitment to human rights law. It is reflected through UK national law, including, most recently, the Human Rights Act, as well as a range of domestic legislation that implements our specific obligations under UN and other international treaties, from the convention against torture to the convention on the rights of the child. Of course, the principal international treaty most relevant to the UK’s human rights laws is the European convention on human rights. I again make crystal clear the Government’s commitment to respecting and remaining a party to the ECHR. There will be no weakening of our human rights protections when we leave the EU.

In fact, we have an opportunity to reinforce and build on our proud tradition of liberty and the protection of rights. We are already in the process of paving the way to ratifying the Council of Europe convention on preventing and combating violence against women, the Istanbul convention. We are leaving the EU, but our commitment to pan-European standards, human rights and the European co-operation in this area remains undimmed. Furthermore, as the my right hon. and learned Friend the Member for Beaconsfield is aware, we will introduce an amendment before Report stage, dealing explicitly with the Equality Act 2010 issues that hon. Members have raised, including by requiring Ministers to make a statement before the House on the consistency of any Brexit-related legislation with the Equality Act.

It is worth reinforcing the point that the charter is not the original source of the rights contained within it. It was only intended to catalogue rights that already existed in EU law. Indeed, I am glad that my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) intervened, because he wisely noted, as recently as 2011, before a European Committee, that protocol 30 governing the application of the charter

“sets out the boundaries around the charter by confirming that it neither creates nor extends any rights to EU citizens outside those that had existed pre-Lisbon, and it emphasises that member states are required to comply only when giving effect to EU law.”—[Official Report, European Committee B, 14 March 2011; c. 5.]

These rights, codified by the charter, came from a wide variety of sources, including the treaties, EU legislation and, indeed, case law, that recognised fundamental rights as general principles. All those substantive law principles and rights, of which the charter is a reflection not the source, will already be converted into domestic law by the Bill.

It is not necessary, therefore, to retain the charter in order to retain such substantive rights. With that in mind, it is right—this deals with the issue that the hon. Member for Nottingham East raised at the outset—for me to reaffirm the Government’s commitment, which the Secretary of State for Exiting the European Union made to the Select Committee, to publish a detailed memorandum setting out how each article of the charter will be reflected in UK law after we leave. I can confirm that we will publish that by 5 December. I hope that that reassures the hon. Gentleman and the hon. Member for Sheffield Central, both of whom raised this point. Let me say to my right hon. and learned Friend the Member for Beaconsfield that I am very willing to continue my dialogue with him on these important matters.

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[Dominic Raab]

I will make a slight bit of progress, and then I will give way.

Seeking simply to transplant the charter into our domestic law as it stands, dislocated from EU membership —given all the other points that Members have made about the way in which it would apply in practice—would not be appropriate, and, indeed, could introduce needless complexities that all of us, on both sides of the House, should legitimately seek to avoid.

[Mr Kenneth Clarke]

My hon. Friend has addressed my question, but, with great respect, he has failed to give an answer. It is true that the charter was originally proposed as a statement of European values to which all members of the European Union could adhere, but, as we have heard, it has developed. If it is doing no harm, why are the Government going to such lengths to get rid of it as the one specific change in the Bill? Presumably it is because it contains the words “European” and “rights”, and this was intended as a Daily Telegraph gesture to the hard right wing of my party.

[Dominic Raab]

My right hon. and learned Friend’s intervention was not in quite the spirit in which we have conducted our proceedings so far, but I shall try to address his underlying concern, and I shall be happy to take another intervention from him shortly if he thinks that I have still not addressed it. He is a demanding customer, but I shall keep on trying.

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[The Solicitor General]

It is a pleasure to follow the hon. Member for Edinburgh East (Tommy Sheppard). Let me take this opportunity to assure him yet again that our commitment to rights and freedoms remains absolute. I spent nearly 20 years at the criminal Bar dealing with the liberty of the individual. Indeed, I think I was a human rights lawyer before we even coined the phrase, as were many other Members on both sides of the House.

The point has already been made that our rights and freedoms long pre-date modern developments, but modern developments have no doubt helped to sustain, improve and enhance the range of those freedoms. The fundamental question that we seek to ask about the charter is whether, in the final analysis—as we are no longer to be members of the European Union—it adds anything relevant or material to the sophisticated and developing body of law that has evolved over generations. I do not think so, and I have reached that conclusion after extremely careful thought.

It is tempting, after a long debate, to try and treat this as a Second Reading wind-up, but we are far from that. Other Members are anxious to take part, and I am mindful of the time. I will therefore be true to the principles of debate in Committee, and deal with schedule 1, which I hope will be agreed to. In doing so, however, I will address the various amendments that have been tabled on pages 8 to 12 of the amendment paper—which is still the same size although we are now on day three of the Committee stage, and I am pretty confident that that will remain the case.

[Mr Kenneth Clarke]

Before my hon. and learned Friend moves on—very authoritatively, I am sure—to the details of the amendments, may I point out that he has just made an important statement? He said that he had thought about whether retaining the charter of fundamental rights after we had left would add anything to our legal rights in this country beyond what we already have. In the past half hour, we have heard my hon. Friend the Member for Eddisbury (Antoinette Sandbach) describe what she calls the third category of rights, which do not appear anywhere else in our law, and we have just heard the hon. Member for Edinburgh East (Tommy Sheppard) list three or four rights in the charter that are not replicated anywhere else. Which of those rights would the Solicitor General be happy to see abandoned? What is going to happen to the third category of rights? He must explain why he does not think the charter adds anything, given that the main reason people are trying to get rid of it is that it has extended the scope of European-sponsored human rights law in this country.

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[Mr Kenneth Clarke]

We are making some progress, but I point out that I am the second name on the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), and I shall inquire of the Chair between now and the end of the debate whether I have a right to call for a vote on those amendments, which I think I may have. I am extremely glad to hear the Solicitor General say that he will bring forward a Government amendment, because he has vigorously rejected just about every argument that my right hon. and learned Friend has used throughout the debate and has stuck rigidly to the interpretation of the Bill as it stands—with which we started. Will the Government’s amendment at least seek a compromise if it does not move completely towards my right hon. and learned Friend’s arguments? It is no good fobbing us off with more discussion if the amendment will not actually change the policy.

[The Solicitor General]

With respect to my right hon. and learned Friend, I have talked in detail about the various paragraphs of schedule 1, and I have been looking in particular at paragraph 3. In response to the clarifications sought by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), I made sure that all of paragraph 3 would be the subject of that clarification and the tabling of an amendment. Neither my right hon. and learned Friend the Member for Rushcliffe nor I are fans of having our cake and eating it when it comes to EU withdrawal and, with respect, I am offering something substantial here that will certainly satisfy him this evening.