European Union (Withdrawal) Bill

Antoinette Sandbach Excerpts

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

[Paul Blomfield]

I thank the right hon. and learned Gentleman, who has made the point much more effectively than I did. That is absolutely right.

Briefly, Francovich raises some important issues of accountability. Surely there is oversight by Government, because I would expect them to accept that the right to damages should be available in cases where the breach of Community law took place before exit day, and indeed before the end of a transitional period, but discovery only took place afterwards. I am therefore seeking clarification from Ministers on that point, and I hope that they accept what hon. Members are seeking to do in amendments on Francovich.

We are pleased to support new clauses 16, 78 and 79, as well as amendments 297, 298, 299, 8,10,101,105 and 62 and the consequential amendments 126 ,127,129,140, 141, 302 and 9—just for clarity. In conclusion, I return to amendment 46, because we need some honesty from the Government. The House has not authorised the Government to use Brexit as a vehicle to deplete human rights in this country. If the Government want to reduce rights and protections, they should say so and we can debate it. What is not acceptable is to pretend that the Bill provides for the transfer of rights and protections when it clearly does not.

[Antoinette Sandbach (Eddisbury) (Con)]

The Secretary of State for Exiting the European Union has made a number of statements about the fact that if Opposition parties can identify rights that will not be covered he is willing to look at them and legislate for them. We have discussed a third category of rights—not those protected by the Human Rights Act or those that will be irrelevant because they are in the charter and will no longer apply —so is the hon. Gentleman prepared to take that at face value and work with the Government to ensure that those rights that have been identified are protected?

[Paul Blomfield]

If the Government can identify the sources of rights covered by the charter and can explain exactly how any deficiencies or gaps left as a result of failure to transpose the charter will be identified, and if they outline what remedies they might make at a later stage, we would be happy to sit down with them and talk about that. It is absolutely clear to us that the Government should stick by their word and their claims in relation to the Bill on the need for the existing level of human rights protection to be preserved in UK law. As it stands, central to that consolidation is retaining the charter as part of the retained EU law. I hope the House will agree and I hope the House will support our amendments.

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[Dominic Raab]

I am not going to give way again.

The point I wanted to reaffirm is that, given that the substantive rights codified by the charter will be retained in EU law, it does not make sense to incorporate the EU charter itself, an element of the EU’s institutional architecture designed to regulate EU membership, at precisely the moment when we are leaving.

[Antoinette Sandbach]

Does my hon. Friend accept that there may be a third category of rights that are in the charter but are not in the Human Rights Act, and require protection, and that the source of those rights cannot be identified other than in the charter? If so, will he accept the suggestion made by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) that there should be an Act of some sort to deal with them?

[Dominic Raab]

As I have made clear, we will publish a memorandum containing article-by-article analysis of the charter and how the substantive underpinning rights at the point at which it is codified can be reflected in UK law. I am happy to continue the dialogue with my right hon. and learned Friend the Member for Beaconsfield and my right hon. Friend the Member for West Dorset if they believe that any rights have been missed out.

I think that this is probably the right moment to deal with amendment 151, which was tabled by the right hon. Member for East Ham (Stephen Timms), and which relates to the protection of personal data.

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[Antoinette Sandbach]

Our independent judiciary is clearly quite capable of balancing the rights contained in the charter, the Human Rights Act and other pieces of domestic legislation, and it has done so successfully for many years.

[Joanna Cherry]

Indeed it has; that is its job. In particular, judges at the higher level such as the Supreme Court and the High Court of Judiciary in Scotland are used to grappling with the complex interplay of international treaties and international human rights protections.

I mentioned earlier that the Exiting the European Union Committee had heard evidence from a variety of witnesses about the effect of not incorporating the charter. I have to be honest and say that some of them were happy for the charter not to be incorporated, but even they said that something would be lost by its going. Hon. Members on both sides of the House have given a number of examples of what would be lost, and I would like briefly to add to that list.

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That, of course, is one of the arguments that we are going to have about our trade and future relationship with the European Union, and it is pertinent to the points made by the right hon. Gentleman. It is the argument about whether we are to have exact regulatory matching and stick to the letter of each piece of European legislation if we are to trade successfully—whether in goods, services or data—or whether we are to have equivalent legislation which adequately protects and matches those rights, which we may deliver in a different way, but which is equivalent to those rights.

[Antoinette Sandbach]

The Business, Energy and Industrial Strategy Committee heard some very interesting evidence today from representatives of the aerospace and airline manufacturing sectors. They said, “We want identical regulations for the safety of passengers. It is vital to the industry for our regulations to be exactly matched with those of Europe.” There will be some areas in which we shall need regulatory matching.

[Mr Harper]

That is a very helpful point. There may well be areas in which, because of the nature of the product or service involved, the exact matching of regulations will be judged to be right, but that may well not be the case in every single area. Perhaps what we need is a sensible structure that allows us to have some debates and decide what is the right thing to do, and then have conversations with our European neighbours. That will be one of the big arguments as we negotiate the trade deal, because it is relevant to the extent to which we can then have different arrangements that will enable us to seize the opportunities that are undoubtedly available to us around the globe.

I was on the remain side, as, indeed, was my hon. Friend. There is also the argument that if we continue to match every single regulation introduced by the European Union, particularly when we have no say in the process, we shall not be gaining any of the benefits of not being in the EU, which would rather defeat the point of leaving in the first place. I certainly believe that, given that the country decided to leave, we need a good, deep relationship with our EU partners so that we can continue to trade with them, but we also need to be able to take full advantage of every opportunity of securing that incremental business from around the globe. My hon. Friend is right, however: we should listen to the businesses that are involved in these sectors, and make the right decisions.

Let me now deal with the specific points made by the right hon. Member for East Ham about amendment 151, which would require the laying of

“regulations to create a fundamental right to the protection of…data.”

There is an argument here about what will or will not be the behaviour of our European partners, both the member states and the Commission. It seems to me that, if we deliver legislation according with the general data protection regulation in our Data Protection Bill, along with other provisions that protect such data, the European Commission may decide, for what will be political reasons, to rule that there is some incompatibility. If the Commissioners have made up their minds, for political reasons, to be mean and horrible to us and try to damage our economy, there is not very much that we can do about that. Even if we were to do what the right hon. Gentleman has suggested, they would just dream up another excuse to damage us.

If that is how the Commission is going to behave, it is not an organisation I would want to be a part of, but I do not take the view that that is what the Commission or the other member states are going to do. It is certainly not the way we have approached the negotiations. The Prime Minister has been very clear that we want a deep and special partnership with our European neighbours. We have made clear—this is relevant on the data issue—that we will have an unconditional relationship with our EU partners on security and intelligence co-operation: we will use our assets and resources to help to defend and protect European security. On that basis, it would be very churlish if the European Commission were to take the approach the right hon. Gentleman set out.

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There are pros and cons in determining whether the final say on our laws should rest with Parliament or with judges, but I hope that many will agree that this is a significant constitutional question. Before we could embark on that course of action, we would need to establish a stronger national consensus than we currently have for the charter.

[Antoinette Sandbach]

I am grateful to my right hon. Friend for giving way. We are told by the Treasury Front Bench that these are existing rights which apply now, and that they are rooted in legislation from before the European Court. Given that those are rights that are applied now, why does she not wish to protect them and ensure that they continue?

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[Charlie Elphicke]

I had occasion to consider deeply the matter of rights and human rights when I drafted, tabled and had debated in this place a British Bill of Rights—the Human Rights Act 1998 (Repeal and Substitution) Bill. People said to me that that could not be done, that it could not be drafted and that it was an impossible project. However, with the help and counsel of many hon. and learned Friends—not least my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who has just spoken with power, force and vigour—I was able to construct and present a Bill of Rights to this House. That is relevant to this debate because there were three key questions involved. The first question was: what are the rights? The second was: how do we interpret them? The third was: which court should decide on those rights?

Let us take the first question. What are the rights? Some rights are so basic and self-evidently true that they are not even rights at all. They are values. They go to the heart of our constitution, of our foundations, of what we believe in as a country, of what we are about and of our way of life. They involve basic stuff such as the rule of law, natural justice, the right to a fair hearing and the presumption of innocence. Those are the fundamental values of what we are about as a nation and of what we hold to be self-evident and true. When they are trampled upon, there is uproar in this place and across the country because we know in our hearts that those are the values that we hold dear. They are not rights; they are values.

There are also rights, in the Human Rights Act 1998, that we hold to be self-evident and true. They are called second amendment rights in America, and they include the right to a free press, the right to free speech, the right to determine one’s religion and the right of association. Those are important rights that go to the heart of what we are about and that we call values. Then there are the many rights set out in the European convention on human rights that have been built mainly in our own constitution and our own history. They did not just begin in 1998. They are rights that we have taken to be self-evident and true for many years, and they have found their way into the Human Rights Act, and the human rights code—a document to which it is hard to object.

Then we come to the issue of interpretation, and that is where the problems begin. The European Court of Human Rights adopts an interpretation mechanism that I call objective. It asks: do we have the right to family life, yes or no? If we have that right, we cannot be extradited in certain cases. In our own system, we tend to take what I call a more subjective view. We look at all the facts and circumstances of a case. In interpreting that right, we ask whether someone should be able to stand on that right to family life, given their conduct if, for example, they had committed a crime or run someone over. Having examined all the facts and circumstances of the case, we would say that they should not be able to stand on that right because their conduct means that they should not be allowed, ethically and in equity, to do so. That is where the British people were in so many extradition cases. They thought, “These are European rights and they are all wrong.” They are not necessarily wrong, but their interpretation was not right and did not sit well with our values, our way of life and our understanding of how principles of law should be interpreted.

The third question is: what is the proper court? I made sure that my British Bill of Rights included a clause on interpretation. It stated: first, that all facts and circumstances of a case should be considered, giving judges a wide discretion to make a full decision; and secondly, that the court should be the Supreme Court. For me, it was about making the Supreme Court supreme. I did not see why our rights as a nation should be subject to the European Court of Human Rights, or indeed to the European Court of Justice, when our own Supreme Court can determine those things very effectively. I agree with my hon. and learned Friend the Member for Torridge and West Devon that it should be this House that constructs rights, that their interpretation should be in line with our own canons of interpretation as a nation, and that the Supreme Court should be supreme.

However, I would not reject the charter of fundamental rights out of hand. Let me explain why. There are rights that make no sense here, such as the right to petition the European Parliament. If we are leaving the European Union, why would we want to petition the European Parliament? On the right to free movement, to seek and have employment anywhere across the continent, that will be a matter for us to determine as a nation state when we leave the European Union. It makes no sense to include those rights in the charter—a point I made to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who agreed with me that we would need to adapt it.

The charter contains rights that draw on the European Court of Human Rights, so there is unnecessary duplication. Then there is an intermediate set of rights, which I think this House should look at. If we are to take back control, we should ask ourselves, “Is it right that some of the rights in the charter should be brought into our own system of law?” That might not be for this Bill, but it is something we should definitely consider.

[Antoinette Sandbach]

As we are in effect transposing the whole of EU law, with all the regulations that people have complained about for years, for example on bendy bananas, and the regulation of electrical items and consumer protections, does it not make sense to look at this third category of rights?

[Charlie Elphicke]

I agree with my hon. Friend. I think that it does make sense to look at this category of rights, whether in this Bill or more widely; it is something the House should consider.

Where is the balance to be struck on article 8, which relates to the protection of personal data? My view, for what it is worth, is that I should own my own data and decide what happens to it. It is my own data about me, so I should not have the Government or big businesses saying, “No, it belongs to us.” That is a debate that we should have as a country. This Bill is probably not the right mechanism for that debate, but we need to consider where the balance should lie.

Article 41 sets out the right to good administration. The Minister will say, “Well, of course we administer correctly; we are honourable men”—so are they all. But it is important that, as a matter of principle, every person

“has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies”

and that the right includes

“the right of every person to be heard, before any individual measure which would affect him or her adversely is taken”.

It seems to me that these rights are self-evident and true, and that we ought to ensure that they are written into our codes, from the point of view of executive action, if they are not already. They include

“the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality”

and

“the obligation of the administration to give reasons for its decisions.”

Those things, it seems to me, are self-evident and basic about what we are and should be about. These are rights that are not written into our system fully and properly, but I think that there is a strong case that they should be. I have of late had reason to ponder such matters in more depth, and the House should consider them to ensure that we execute such things properly in our system, our way of life and the values that we hold dear. The House should take back control to ensure that the rules of law and of executive action apply to each and every person in this nation and that we strike the right balance as we take on the great responsibility of restoring sovereignty to our sovereign Parliament.

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[Helen Hayes]

I thank the right hon. Gentleman for his intervention. That is not my contention; my contention is that the charter of fundamental rights is a very clear articulation of one of the many reasons why my constituents voted so overwhelmingly for remain, and I seek to represent their views today, as I am sure he seeks to represent the views of his constituents in this important debate.

The charter is the most up-to-date human rights framework from which UK citizens benefit, and it is incomprehensible that the Government should not want to commit to the same high standard as the basis for all future human rights protections for UK citizens post Brexit and as a basis for continuing to develop UK human rights law. That they will not do so is revealing and deeply concerning.

My constituents did not vote for Brexit. But, above all, they did not vote for Brexit on any terms. They seek reassurance from the Government, and they do not find it in this deeply flawed Bill. It is essential that UK citizens can continue to rely on the highest standards of human rights protection post Brexit. I will continue to fight for that, and I will vote for these amendments.

[Antoinette Sandbach]

It is a pleasure to follow the hon. Member for Dulwich and West Norwood (Helen Hayes). I agree with her that human rights law is a developing area of law, but I do not agree that this Government have any intention of trying to undermine it.

We have heard a very interesting exposition of why the charter should not be translated into UK law. I accept that there are flaws with amendment 8, but I want to speak to it none the less because it is quite clear that, as I believe the Government have now accepted, the third category of rights needs some form of protection and incorporation, if it is not already protected.

The development of human rights law started out in the 1920s with the Geneva conventions. Those conventions were signed by a limited number of countries and were basically the fundamental guarantees of the rights of citizens when all law and order has broken down and they are facing the worst circumstances of war and chaos. That is the true meaning of the word “chaos”, I would say to my hon. Friend the Member for Fareham (Suella Fernandes). The law has moved on and changed, and countries that were never signatories to those conventions are now subject to their requirements because they are the basis of the minimum rights that should be guaranteed in any civilisation. Countries that fail to guarantee those rights get prosecuted under the International Court of Justice in The Hague. In future we will no doubt see actions on Syria, and other actions. The 1950 convention that we originally signed, which forms the basis of our Human Rights Act, has therefore moved on, and there are rights contained in the charter that are not in the Human Rights Act.

[Mr Simon Clarke (Middlesbrough South and East Cleveland) (Con)]

The extra rights, or third-category rights, in the charter seem to be predominantly matters of social policy such as healthcare and schooling. While we might all agree that those things should happen, they should not be rights in a charter but matters of policy for Government to determine. That is why I take exception to my hon. Friend’s argument. This is not really about rights but about policy.

[Antoinette Sandbach]

I am afraid that the Walker case demonstrates exactly the opposite. Somebody was discriminated against because they were in a same-sex marriage, and the charter guaranteed the partner’s right to the pension. That was not a matter of social policy; it was enforced because of the charter. That is why this debate is incredibly important. There will potentially be some areas that are a matter of policy, but it is important for the Government to go away and look at the amendments because serious points are being made that will affect people’s everyday lives. This is not a debate on principles that do not matter; these are really important, fundamental issues that, as a democracy, we should be looking at in a sensible and reflective way.

[Sir Oliver Letwin]

I entirely agree that there are anti-discriminatory rights contained in the charter. However, does my hon. Friend agree that the issue which is not yet resolved, but which the Government’s analysis may resolve, is whether those rights are already encoded in the case law and the general principles emanating from that case law, and therefore do not need to be in a separate charter for our purposes, or are not yet in the law and therefore would need to be in the charter?

[Antoinette Sandbach]

I do accept that that needs to be looked at. The problem with the sovereignty of Parliament is that we always get to the point where the Parliaments of the future can change and erode these rights. I agree with my right hon. Friend’s earlier suggestion that in due course the Human Rights Act ought to be amended to include the broader category of rights. We are seeing an evolution and a change in our rights, and it is important to reflect that in that Act.

[Mary Creagh]

The hon. Lady is making some excellent points. Several of her Conservative colleagues have argued that some of the rights contained in the charter are otiose—one of them being, perhaps, the right not to be subjected to forced expulsion. That is, thankfully, not something that we have seen in this country, but it was a persistent feature in 20th century Europe. We are now at a stage where the Home Office is sending out letters to EU nationals threatening them with deportation. Although some of those individuals may yet have recourse to their rights under the European charter, they will not be able to exercise them after we leave.

[Antoinette Sandbach]

The hon. Lady does my colleagues a great disservice. The rights that my colleagues described as otiose were, for example, the right to petition the European Parliament or the right to stand in EU Parliament elections. I think she is also being unfair to the Home Office, which has made it very clear that the letters to which she refers were sent out by mistake and did not accurately reflect the position.

Nothing that the hon. Lady has said takes away from the point that the charter of fundamental rights contains a third category of rights that may not have protection. I am encouraged that the Government are going to undertake the exercise that has been mentioned, which they need to do, before Report. It is important that the Committee takes very informed decisions about where the gaps are. For that reason, I very much support amendment 10.

[Mr Francois]

This situation has evolved over a number of years, and it continues to do so. I do not want to introduce too much of a partisan element into the debate, but I want to give an example of how the situation has changed over the past few years. When we debated the Lisbon treaty in this House in 2008—something that I was actively involved in at the time—the policy of the then Labour Government was that the charter should not be justiciable in the United Kingdom’s courts. In fact, the then Government were at great pains to stress—

[Antoinette Sandbach]

Is this an intervention?

[Mr Francois]

It is. The then Labour Government said that they had a protocol that specifically ruled that out. That is how much things have changed.

[Antoinette Sandbach]

There has been much misrepresentation in the House of the protocol, but it is quite clear what it said: the rights contained in the charter were existing rights. In other words, the charter did not create any new rights that had not previously existed. The position of those on the Treasury Bench is that the rights are of long standing, and they apply to UK citizens. I am very keen to ensure that where those rights may not be adequately protected, the gaps are filled. But to say that protocol 30 was an opt-out, which is how it has been portrayed in the debate, is, quite frankly, inaccurate and not right.

[Tom Brake (Carshalton and Wallington) (LD)]

The hon. Lady is being generous in giving way. Can she expand on how she sees us getting from our current position to the point at which the Human Rights Act includes the rights that she thinks it should include? What sort of transition period does she envisage, and how will the rights be protected in the interim?

[Antoinette Sandbach]

I very much hope that those on the Front Bench will go away and undertake their promised exercise, from which we will be able to see exactly where the gaps are and where the third category of rights may fall. It seems to me ridiculous that we are going to bring over 12,000 regulations covering everything from fridges to bananas, but we are not going to deal with some of the most fundamental and basic things that guarantee citizens certain levels of protection. That is the fundamental principle, and it is why I support both amendments 10 and 8.

[Anna Soubry]

Does my hon. Friend agree that it is really important, given the many concerns about the Bill, that we make it absolutely clear, as she quite rightly points out, that we have a very proud history on human rights in this Parliament and in this country? The idea that this Government are in some way taking away rights from people is simply not true, and it is very important for all of us to report this, especially to our constituents, with great accuracy.

[Antoinette Sandbach]

I entirely agree with my right hon. Friend. In fact, I could not have put it better myself. In that regard, I adopt everything she says.

This is important because we have been publicly vilified for tabling amendments to the Bill. Debates such as this illustrate very dramatically to our constituents why it is so important to undertake a democratic process, which sometimes involves tabling probing amendments—I know amendment 8 is such an amendment—so that we can look at, consider and debate these issues and, I hope, come to consensus across the House. I know other Members wish to speak. These are incredibly important matters, and I am waiting to hear what Ministers say about how they will approach them.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

I thank the hon. Member for Eddisbury (Antoinette Sandbach) for her speech, which showed her great experience and knowledge from her many years practising in the legal profession. I have heard many other Members from both sides of the Committee who have eminent knowledge in this area—they have spoken in this and previous sittings and will speak in others—not the least of whom is my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), who is in his place. He studied in the school of law at the University of Leeds; I studied in the school of computing at the University of Leeds, and I hope to apply that knowledge later in my contribution.

Opposition Members are looking to the Bill to ensure that retained EU law within UK law keeps us aligned with EU rights and regulations. I am going to outline my concerns about the Government’s decision to exclude certain elements of EU law through the EU withdrawal process. For instance, it makes no sense whatsoever to me to exclude from that process the charter of fundamental rights. Where is the analysis of the effects of removing the charter from our law? What safeguards are in place to ensure that we are not creating a legal chasm that has unknowable effects on individuals and businesses?

Article 8 of the charter covers the protection of personal data—the right to privacy and the right to data protection, which serve as the foundation of the EU’s data protection law. Getting rid of article 8 could prevent businesses from building customer profiles across the EU, which will directly harm the ability of small companies to compete when selling their products on social media platforms, an area in which the UK has seen huge growth. I am very pleased that my right hon. Friend the Member for East Ham (Stephen Timms) has tabled amendment 151 on this matter.

The charter is fundamental to our response to the Government’s failures on clean air, an issue that is engulfing many cities across the UK, not least my city of Leeds. Article 37 ensures that people have recourse to the courts when there are environmental breaches. In fact, the UK has been sent a final warning that it must comply with the EU air pollution limits for nitrogen dioxide or they will face a case at the European Court of Justice. In the Environmental Audit Committee, on which I sit, the Secretary of State for Environment, Food and Rural Affairs could not articulate what powers and mandate a new UK environment protection agency would have to replicate the loss of article 37. He said that

“we will consult on using the new freedoms we have to establish a new, world-leading body to give the environment a voice and hold the powerful to account. It will be independent of government, able to speak its mind freely.… We will consult widely on the precise functions, remit and powers of the new body”—

no definition there. He also said:

“We also need to ensure that environmental enforcement and policy-making is underpinned by a clear set of principles”—

no definition of those principles. How can we be satisfied with an EU withdrawal process that does not provide for our leaders to be accountable for their environment failures? My constituents voted overwhelmingly to remain in the EU and do not expect to lose the rights provided by the charter of fundamental rights.

Many of those rights, as has been pointed out, are well established in UK law, but many others are new rights that have been introduced since our membership of the EU and the signing of the Lisbon treaty. Will the Government argue for each of those rights in turn in the House, or are we to take it on trust that they will be retained and that we will continue to enjoy them post-exit day? Attempting to scrap the charter is cowardly and speaks to the suspicions of people up and down the country that the Government are not working for them but instead working for the hardest possible Brexit.