All 7 Baroness Deech contributions to the European Union (Withdrawal) Act 2018

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Baroness Deech Excerpts
Baroness Deech Portrait Baroness Deech (CB)
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My Lords, I deem it appropriate that I am speaking in the presence of my noble friend Lord Pannick and noble and learned friends Lord Judge and Lord Hope, because I am going to confine myself to Clause 5(4) and (5), which state that the European Charter of Fundamental Rights is not a part of domestic law on or after exit day.

The charter is a novelty, which has only been seen to apply directly in this country since 2013, as the UK, under Prime Minister Blair, signed up to Protocol 30 —an opt out. This opt out was ignored by the European Court of Justice, a warning of things to come. It started as a political declaration designed to give common values to the states of the EU and build a platform for more integration. It morphed into a document with legal status, as explained by the House of Commons European Security Committee report in 2014, The application of the EU Charter of Fundamental Rights in the UK: a State of Confusion. It recommended primary legislation to disapply the charter from the UK by way of an amendment to the European Communities Act 1972. When one reads the Commons report, explaining how the charter would broaden the ambit of EU law, its uncertain distinction between rights and principles, the hazy scope of its application and the effect of having parallel rights in the charter and the European Convention on Human Rights, it becomes clear in the end that the inclusion of the charter after Brexit would cause more confusion and less certainty for business, impinge on the sovereignty of Parliament in an unprecedented way, and could open the door to eternal subjection to the ECJ and EU legal supremacy. Maybe that is what the movers of amendments to keep the charter in place intend.

The charter was also intended to protect the citizen against overmighty EU institutions, not necessarily against his or her own state, for states have their own democratically enacted rights laws. This was explained by the noble and learned Lord, Lord Goldsmith, in his evidence to the aforementioned committee. The then Lord Chancellor, Mr Kenneth Clarke, was equally dismissive in his evidence to European Sub-Committee B in 2011, when he said,

“the charter … is of more political and public presentation … than it is of deep significance, because it does not actually change anything”.

It is odd that those who are now so determined to preserve it were once so clear-sighted about its insignificance. Yes, it has changed, but it has changed for the worse.

The charter is insignificant in another way, too. What a failure it has been in upholding—let alone extending—democracy and freedom in great swathes of Europe. Poland is undermining human rights and the rule of law. The latest Freedom House report slates many EU states for turning back from civil liberties and political rights. In Hungary, Austria, Croatia, Romania and other European states, judicial corruption, intolerance, xenophobia, racism, domestic violence and crime are on the rise. Extreme right-wing parties are on the march in Germany and Greece, and France has extended its state of emergency for the fifth time. So much for the efficacy of the charter. And it has happened on our watch.

This debate should be about our values. The EU puts a price on everything, but I do not discern its values. We have heard in this House that the Government do not know their destination. But what is the EU destination, save “more Europe” on the sat-nav and taking every road to the extreme right? No positive case could have been made for it during the referendum, because its failures in, inter alia, the euro and management of migrants demonstrate its lack of political virtue.

The most radical and dangerous element of retaining the charter is that it would uniquely give judges the power to disapply Acts of Parliament, not just declare them incompatible with human rights law, as is their remit under our Human Rights Act. If the charter is not removed from our law, our courts will be invited to limit or ignore existing law or EU incorporated law by reference to the list of rights—many of them vague, many of them simply aspirational, such as the independence of the elderly. I am pleased to note that my noble and learned friend Lord Brown supported this view.

We ought to be proud of our commitment to and long history of human rights and the rule of law in this country. Lord Reed explained in his famous judgment in the UNISON case in 2017 that the rule of law means that this Parliament makes our laws, its members are chosen and accountable to the people, and the courts enforce those laws. Brexit means that we return to that position and to our leadership in human rights.

We should ask ourselves whether each one of us feels that his or her rights are better protected by European law or by the Supreme Court. The core of the argument against inclusion of the charter is that it would bring into our law a set of rights and principles not enacted by Parliament—not subject to the usual debate and testing of public opinion—and its scope and meaning would change as it was interpreted by the European courts after Brexit, so we would be bound for all time by a set of norms over which we had no control and no part in shaping—a charter designed for an institution we had left. Those who are so determined to uphold parliamentary scrutiny by limiting Henry VIII powers ought also to appreciate that the inclusion of the charter keeps that king’s approach for ever.

European Union (Withdrawal) Bill Debate

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European Union (Withdrawal) Bill

Baroness Deech Excerpts
Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018

(6 years, 2 months ago)

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Viscount Hailsham Portrait Viscount Hailsham (Con)
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My Lords, my purpose in adding my name to Amendment 12 is to enable the Government, through my noble friend, to explain what arrangements they intend to put in place before Brexit, in order to ensure that the United Kingdom is a full participant in the formulation of foreign and security policies which inevitably will be of great and enduring consequence to us all. The absence of such arrangements would be a conclusive argument against leaving the European Union. Noble Lords should be clear about this: if we wish to punch above the weight that naturally attaches to a country of relatively modest resources, it is because we are part of and not outside the structures of the European Union.

For five years, I had the good fortune to serve in the Foreign Office under the overarching authority of Douglas Hurd. It is much to be regretted that he is not able to participate in this debate. His authority within the diplomatic and international community was great. This was due in part to his patience, his personal integrity, the temperate language that he always employed and his willingness to compromise. He never sought to promote himself by appealing to the wilder fringes of any political party. My noble friend was a model of a Foreign Secretary and I commend his example to all his successors. I digress for a moment and say that I very much regret that this House does not have the opportunity of hearing from Mr Jack Straw and Sir Malcolm Rifkind, both of whom would have made a valuable contribution to this debate.

When working under Lord Hurd of Westwell, I had immediate departmental responsibility for a number of important areas: the collapse of the former Soviet Union; central and eastern Europe, most especially the war in former Yugoslavia; and the turmoil, then as always, in the Middle East. We did, of course, have distinctive political policies on all these matters and we have distinctive bilateral relations with the relevant countries and institutions. But looking back on my time in the Foreign Office I am sure it is true that we made a real difference when we were able to work with our European colleagues and within the framework of collective European policy.

Collectively within the European Union, the United Kingdom was more influential than it would ever have been standing alone. This is not the age of Lord Palmerston or Don Pacifico. If one looks forward to the major international problems that we now face, that judgment remains good. Consider the ambitions of Russia; the ever-increasing power of Asia, especially China; the fact that America is once again detaching herself from the rest of the world and, most notably, Europe; the risk of war on the Korean peninsula; international terrorism; the problems posed by climatic change; the instability in the Middle East and the rise of militant Islam. In respect of all these matters, a collective approach is infinitely more effective than the individual policies of a middling power such as ourselves.

There are also some specific problems to consider. What of our permanent seat at the Security Council? As a member of the European Union, our permanent seat was less controversial than it might have been. Outside the EU, our status as a permanent member will be under increased pressure and, in any event, the status of France will be greatly enhanced.

What about Gibraltar and the Falkland Islands? Outside the councils of the European Union we will not be able to rely on the automatic support of our European neighbours. Further, on any view, our role as America’s principal interlocutor with the European Union will cease. These considerations, by themselves, leaving aside all others, are a good and sufficient argument against leaving the European Union: that is my considered position. However, for the purposes of this debate, these concerns should cause this House to put questions to Ministers. We are repeatedly told by the Prime Minister and others that while we are leaving the European Union we are not abandoning our close ties. The noble Lord, Lord Wallace of Saltaire, usefully summarised our position paper, whatever it actually meant. We need more detail. We do not want bland reassurance. “Brexit means Brexit” is a quite meaningless phrase. It is not a policy or even an indication of a policy. Indeed, it is conclusive evidence of an absence of policy. Therefore, I say to my noble friend that this House is entitled to know in detail what arrangements will be put in place before we leave the European Union to ensure that the United Kingdom is a full, active and influential partner in the policy decisions that will certainly affect the lives of our fellow citizens for years to come. I doubt that this House will get a clear answer. I suspect that we will be none the wiser when the Prime Minister makes her long-awaited policy speech at the end of the week.

If decisions were made at last week’s meeting at Chequers, that is welcome. It is almost, though not wholly, true that any decision is better than no decision. However, we are entitled to ask why on earth such strategic decisions were not taken before we triggered Article 50 and not now, with but 12 months or so to go. The absence of any arrangements and procedures of the kind identified in these amendments is by itself a good reason—there are many other good reasons—to reject the policy of leaving the European Union. Therefore, I look to my noble friend to give clear guidance on what procedures and arrangements the Government propose to put in place. This House is entitled to clear and precise answers to these questions, for they are fundamental in character. This is not a time for indecision, fudge, weasel words or lack of clarity. Having our cake and eating it is not an indulgence now available to us.

Baroness Deech Portrait Baroness Deech (CB)
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My Lords, I had not meant to intervene but since the noble Lord, Lord Wallace of Saltaire, has speculated on my views, I wish to put some things in context. Obviously one seeks clarity but I think there is a certain note of hysteria going around. Only a few moments ago, we had a question and answer session showing just how impotent the EU, and, indeed, any of us, have been in relation to Syria. The EU does not even manage to pay its subscriptions to NATO and has been impotent in relation to Russia’s behaviour recently. However, our own performance as a permanent member of the Security Council, a position from which we cannot be dislodged unless one entirely rips up the charter, has been admirable. If we want to continue to be an interlocutor between the continent of Europe and America, it is not a good idea to shoot ourselves in the foot by being even more uncivil towards President Trump than is absolutely necessary. As far as foreign policy and security are concerned, we are members of the Five Eyes group, which, from what I have read, is rather more efficient in its actions than what is going on in the EU. While we of course want clarity, there is no need to panic. We have to consider what the EU has done historically in relation to foreign policy. Over the last 40 years, it has had as many failures as successes whereas our record has been pretty good.

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Lord Goldsmith Portrait Lord Goldsmith
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I am suggesting that the charter is brought into domestic law in the same way as all the other provisions of EU law will be brought into domestic law by this Bill, if it is passed. That means that they will be subject to the powers in the clauses that will be passed for amendment through orders, if this House and the other place approve that way of doing it. They will also, of course, as always, be subject to amendment by primary legislation. I will come on to this, but it is interesting that special protection is given to the ECHR through the Human Rights Act to protect it as we go forward, but there is no protection provided at all for the rights which underlie the charter. That is one of the deficiencies that are not taken account of in the Government’s proposal.

Baroness Deech Portrait Baroness Deech
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Does the noble and learned Lord accept that perhaps we are being tied in knots by his argument? The nub of the charter, and why it is different from the European Convention on Human Rights and our Human Rights Act, is that the charter says that judges can set aside, invalidate or nullify our Acts of Parliament. That is the nub of it and is why it does not sit with the rule of law and parliamentary sovereignty. If you incorporate it in domestic law, you are in a real tangle, because if you try to repeal it, judges could set that aside. You end up in a vicious spiral.

Lord Goldsmith Portrait Lord Goldsmith
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I am grateful to the noble Baroness for the intervention. Of course it is not the charter which provides that, in certain circumstances, our courts have the ability to disapply domestic law; it is EU law and its ability to override Parliament. That is not what the charter has created; it is EU law that has created it. That is something which this Bill is intended to remove.

I want to get back on to the reasons why. The first reason put forward—this is the nub of the question put to me by the noble Lord, Lord Lawson—is that the charter merely codifies existing rights and principles.

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Lord Goldsmith Portrait Lord Goldsmith
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That will depend on the shape of the Bill when it is completed—in particular, what is said about the provisions which deal with primacy of EU law—but at the moment, as the noble and learned Lord will know well from the cases he sat on, people have been bringing cases by reference to both the charter and the convention. One reason for that is that the protection under the charter is more powerful. In future, if people want protection of human rights, they will want the more powerful protection, and if that remains available after the Bill is enacted, they will look to it.

Baroness Deech Portrait Baroness Deech
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So if that protection is more powerful, the entire British structure relating to human fertilisation and embryology, which is very liberal and go-ahead, could be wiped out by the application of Article 3. It is very fortunate that the bodies opposed to our progress in reproductive rights have not cottoned on to that. It talks about the prohibition of eugenics, whatever that is, and selection of persons. By interpretation, it would stop us doing mitochondrial research, selection of embryos to screen out disease and a whole host of other things. Another article ensures continuing freedom of movement. Surely we do not want that.

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Baroness Deech Portrait Baroness Deech (CB)
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My Lords, it does the opposite of what my brilliant former pupil the noble Lord, Lord Pannick, has said. The inclusion of the charter brings with it uncertainty. It is a Trojan horse because if you carry on applying it, its meaning depends on the evolving case law of the ECJ, which has an objective of bringing further integration and other objectives to do with Europe that are not our objectives. Our judges have said that they want certainty after Brexit, but to include the charter, which is evolving all the time, without our scrutiny will give our judges sleepless nights because they will have to follow the twists and turns in EU law. I come back to the fact that the nub of this is that it will plainly give our judges the right to set aside and invalidate UK law. The noble and learned Lord, Lord Goldsmith, mentioned with approval the Benkharbouche case, where part of our sovereign immunity law was set aside by the Supreme Court on the basis of charter supremacy. That was actually dangerous because if other countries start setting aside immunity law when dealing with our diplomats, we will be in a very difficult situation indeed. I would not assess the Supreme Court by the outcome of what it says; we assess courts by the way they are appointed and the integrity of our judges. The retention of the charter is a recipe for confusion, uncertainty and the setting aside of British law according to ECJ judgments.

Lord Pannick Portrait Lord Pannick
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I am sorry to say to the noble Baroness that that is exactly what this Bill achieves in relation to all other retained EU law which is read across. This will be under the control of British judges. Under the Bill it is entirely a matter for them what weight, if any, they choose to give to judgments of the European Court of Justice. The charter of rights is no different from any other provision of EU law in that respect. The noble Baroness mentioned certainty. What I think provokes uncertainty for judges is the approach in this Bill. It is not simply that the charter of rights is excluded by Clause 5; the clause goes on to say that undefined,

“fundamental rights or principles which exist irrespective of the Charter”,

are retained. There is a conflict in the approach taken on this issue. I suggest to noble Lords that the correct approach is that which has been recommended to the Committee and to the House by your Lordships’ Constitution Committee: that there is no justification whatever for distinguishing between the charter of rights and all other aspects of retained EU law. I support the noble and learned Lord, Lord Goldsmith, in what he said.

Lord Wigley Portrait Lord Wigley (PC)
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My Lords, I rise to speak to Amendment 35 standing in my name and that of the noble Baroness, Lady Jones of Moulsecoomb, which would leave out subsections (4) and (5) and insert the words as set out in the amendment. The objective of Amendment 35 is to retain the charter rights in UK law and afford them the same level of protection as those in the Human Rights Act. It has similar objectives to some of the other amendments that have been proposed. I must admit that I address the House on these issues with some trepidation because I am not a lawyer, although I have taken the advice of lawyers in drafting this amendment.

The amendment provides for what I hope is a sensible and responsible approach to Brexit that respects the referendum decision but does not sacrifice rights and protections on the altar of ideology. Removing the European Charter of Fundamental Rights from EU retained law runs counter to the stated purpose of the Bill, which is to facilitate the wholesale transfer of EU law into the domestic statute book. It also contradicts the Government’s assurances that the same rules will apply on the day before exit as on the day after. The Government’s justification for this anomaly is to claim that the charter is unnecessary and that its omission will not result in any loss of substantive rights protections.

In an attempt to support their public assurances to that effect, the Government have since published a right-by-right analysis that they say demonstrates that each right can be found in domestic law. The analysis is unpersuasive. According to Liberty and Amnesty International, it is perfectly possible to retain the charter and deal with any redundant sections after exit just as with the rest of retained EU law, as has already been mentioned. The Equality and Human Rights Commission has obtained the opinion of senior counsel Jason Coppel QC on the Government’s analysis of the charter. His advice is that the loss of the charter will lead to a significant weakening of human rights protection in the UK. This is because, first, there will be gaps in protection, for example in relation to children’s rights, data protection and non-discrimination. Secondly, many rights will no longer be directly enforceable, leading to further gaps in protection. Thirdly, many remaining rights could be removed by Ministers exercising delegated powers.

A particular concern that I would like to highlight is that Brexit will remove any children’s rights and safeguards currently offered by the European Charter of Fundamental Rights, which imposes a constitutional obligation on member states to adhere to children’s rights standards when implementing EU law. The EU’s Court of Justice now routinely refers to the charter when adjudicating on cases involving children.

Baroness Deech Portrait Baroness Deech
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I am reluctant to interfere. My noble friend Lord Listowel, who is sitting next to me, knows more about child law than anybody. I must point out that the protection given to child law in the charter is very crude indeed compared with decades-old jurisprudence in this country. Very recently, the Children and Families Act 2014 and the Children Act before were a nuanced and balanced approach to the protection of children, their education and their rights to contact with both parents. They are infinitely more subtle and pay more attention to their welfare than this kind of sledgehammer approach from the charter.

Lord Wigley Portrait Lord Wigley
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I hear what the noble Baroness says. All I would say is that by ensuring that we incorporate things into UK law, we then have an opportunity, democratically and in an accountable fashion, to make modifications as may be necessary. The danger is that we will throw out babies with bathwater.

Again, the Government have stated that the removal of the European Charter of Fundamental Rights from UK law,

“will not affect the substantive rights from which individuals already benefit in the UK”.

The White Paper notes that many of the rights protected in the charter are also found in UN and other international treaties that the UK has ratified, including the UN Convention on the Rights of the Child. However, in a centralised context there is no specific statutory provision requiring respect for children’s rights in lawmaking, nor a general requirement to safeguard and promote the welfare of children in the UK.

Furthermore, this particular argument has a specific Welsh angle. Stronger protection for children’s rights exists in the devolved nations, specifically in Wales. The Rights of Children and Young Persons (Wales) Measure 2011 imposes a duty on Ministers to have due regard to children’s rights as expressed in the UNCRC when exercising any of their functions. To achieve that obligation, since 2012 the Welsh Government routinely undertake child rights impact assessments on proposals for Welsh law or policy that will affect children directly or indirectly.

The withdrawal Bill will limit the scope of the devolved nations to alter law within the current devolution settlement and brings competence on matters that have been arranged under EU law back to Westminster. This would prevent the devolved nations from exercising their powers to withstand or amend legislation from Westminster, even where this contradicts their own commitments to children’s rights. I submit the amendment to the Committee as a contribution to the debate on these most important considerations.

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Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett
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I will make one brief point that no noble Lord has yet made about Northern Ireland, which I know is of concern to many Members of this House. At Second Reading, citing the Bingham centre and Lady Hermon, I asked the Minister to explain how the requirement in the Good Friday agreement for an equivalent level of human rights protection in Northern Ireland and the Republic would be maintained if the citizens of the former could no longer look to the charter. In his helpful letter to Peers, the Minister pointed out that the agreement preceded the charter and, as the charter is therefore not referenced in the agreement, the Bill should not affect our obligations to it. But the point is about equivalence. If the charter now applies in the Republic and not in Northern Ireland, with the loss of various rights in the latter, I ask again how that equivalence is to be maintained.

Baroness Deech Portrait Baroness Deech
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I will make a point that has not been made before. The charter has never been scrutinised by this House. If it had been, we would not have this lack of clarity. I have more confidence in the ability of our Supreme Court to protect us than I have in the ECJ. Bearing in mind what the noble Lord, Lord Cashman, said, what a failure the charter has been across Europe. The Roma are being persecuted, migrants are not getting proper treatment, the leaders of Catalonia are being locked up and extremist, right-wing parties are on the march. Freedom House is marking down European countries; they are sliding away from human rights. I am not proud of the charter; it has not worked in Europe. We are much better off with something home-grown and administered by our Supreme Court.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, if I appear faint in my defence of the Bill it is due to a lack of food rather than a lack of enthusiasm. I am grateful for the opportunity to respond to this important debate and set out the Government’s position. I will start by making it clear that we are listening carefully to the debates on this issue, and will continue to do so.

The Government agree that protecting our rights and liberties as we leave the EU is of critical importance and it is only right that every detail of our approach is scrutinised. This has been a wide-ranging debate about human rights after exit, but it is worth remembering that the amendments before us relate specifically to the charter and the question of what role, if any, it should have in domestic law when we are no longer a member of the EU.

I maintain that the approach in the Bill to the charter as a document is absolutely right, and that the Bill in this respect is in no need of improvement. However, as many noble Lords have pointed out, that approach cannot be separated from the Bill’s approach to the general principles of EU law, including fundamental rights. In response to the strength of feeling conveyed not just in this House but in the other place, the Government are looking again at these issues. These are highly technical issues in some respects but they are undoubtedly important, so we will look further at whether this part of the Bill can be improved in keeping with some of the concerns that have been expressed. Indeed, my noble friend Lord Lamont referred to an observation made by the Secretary of State himself that, if there were specific examples of rights which were not otherwise covered, we would examine them to ensure that the rights were not lost. However, that is not the case. On the specific question of whether the charter should be kept, our view remains that not incorporating the charter into UK law should not in itself affect the substantive rights from which individuals already benefit in the United Kingdom. This is because the charter was never the source of those rights.

The noble and learned Lord, Lord Goldsmith, anticipated that he might be reminded of his previous remarks on the matter, and I see no reason to disappoint him. In 2008, when this House debated the then European Union (Amendment) Bill, he was absolutely clear that,

“the charter was never intended to be applied directly to member states in dealing with those matters that member states have the competence to deal with. It was always intended to constrain the European Union institutions … the United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts. Moreover, in many cases the charter rights are based on national laws and practices and so they must mirror the extent and content of those national”,—[Official Report, 9/6/08; cols. 426-27.]

laws.

The noble and learned Lord observed that he had nevertheless then encountered the incorporation of the charter into the Lisbon treaty in 2009. Perhaps that was a game changer. I remind him of his evidence to the European Scrutiny Committee in 2014. At that time he referred back to his previous statements and publications with regard to the charter and went on to say that, as he had there explained, the fundamental point was to provide a clear and accessible statement of existing rights and therefore constraints on the power of the EU to legislate.

As the noble and learned Lord’s previous remarks help to make clear, the charter is only one of the elements of the UK’s existing human rights architecture. It reaffirms rights and principles that exist elsewhere in the EU acquis, irrespective of the charter, and the Bill sets out how those rights and principles will continue to be protected in UK law after exit.

The noble and learned Lord referred to a number of issues, such as the case of Benkharbouche in 2017 in the Supreme Court. In that case the court found that there was a breach of Article 6 of the convention but it also referred to Article 47 of the charter in the context not of rights but of remedies. One has to bear in mind the distinction between rights and remedies.

The noble and learned Lord posed three questions in the context of previous observations about the charter. First, he talked about there being no loss of substantial protection. It is inevitable that leaving the EU will result in changes to the current arrangements, but certainly we do not accept that this in itself will result in a loss of substantive rights.

Secondly, he referred to the procedural protections that will be excluded. When we leave the EU, a person can still rely on sources that are reaffirmed in the charter. I emphasise “reaffirmed in the charter”, as he himself observed in 2008 and 2014. Procedurally there may be differences but we do not consider that that can be a basis for incorporating the charter into domestic law. Indeed, we absolutely stand by what has been said by the Prime Minister: it is not necessary to retain the charter to ensure that rights are protected.

The noble and learned Lord also referred to the body of the charter, beginning with Article 1, and suggested that these rights were contained only in the charter. I simply observe that on 5 December last year the Government published a very detailed paper setting out, as it were, a comparison of the rights in the charter and where they can be found elsewhere—in the convention, in the principles of EU law and in our own common law. The noble and learned Lord referred to Article 1, which concerns the right to human dignity. I remind him that there is a long series of case law both from the ECJ, as it then was, and from the European Court of Human Rights going back to 1995 in which, for example, the convention court emphasised that the very essence of the convention is respect for human dignity and human freedom. That has been repeated in a whole series of cases since then. These are well-established rights and they were well established when they were brought together into the charter.

I want to reassure noble Lords that substantive rights protected in the charter are, and will continue to be, protected elsewhere in UK law after we leave the EU, most notably in convention rights, in retained EU law, in the common law and via specific statutory protections such as those in our own equalities legislation. I have already mentioned that the Government published a detailed analysis providing guidance about how substantive rights found in the charter would be reflected in domestic law after exit.

Reference has been made to various legal opinions and that of Jason Coppel QC, who has had a number of name checks this evening. I can only implore noble Lords to look at the very detailed analysis the Government have produced. I also note that some of the references to Mr Coppel’s opinion involve references to his concern that Ministers might change rights, for example, or that the procedures will be affected. However, that is not to say that the fundamental rights underlying the charter are not found elsewhere.

European Union (Withdrawal) Bill Debate

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European Union (Withdrawal) Bill

Baroness Deech Excerpts
Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern (Con)
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My Lords, I hoped that I would get an opportunity to intervene, as the person who first presented to Parliament the text that has just been referred to in Section 1 of the Children Act. I strongly support the view that the interests of the children in question should be the primary consideration in everything that applies in family law. I am interested to see that the definition of family law chosen in Amendment 336 is not one of ours but is imported from the European Union. However, that is a rather unimportant point.

If this Bill is ever to finish its Committee stage, it is important that we realise that it is concerned primarily with putting existing European law which is effective in our country on to the statute book in a way that will work on Brexit day. It is not concerned with the negotiations—although your Lordships are interested in how they progress, and nobody is more interested than I am in how children’s affairs will progress. I agree with what has just been said: it is a question not of politics or ideology but of making sure that we have the best thing we can for our children. Incidentally, I do not agree that we did not enjoy the speech of my noble friend Lord Farmer. He can speak for himself, but it is not for us to make judgments of that kind about our fellow Members of this House—and I hope that nobody is judging me too hard, either.

My point is that the Bill cannot provide for reciprocity. We cannot legislate for the laws of France, Germany or anywhere else in the European Union—but we can do our best to ensure that our law conforms as far as possible with existing European law when Brexit day comes, because that is an invitation to the others to reciprocate. If we have a system that does not in any way mirror the existing European system when Brexit day comes, how can we ask others to do the same? We cannot. Therefore, it is a question not of reciprocity but of ensuring that this Bill does things properly from our point of view and that the ground that we have to plough for reciprocity is properly ploughed and ready. That is why the Bill is so important.

It is also fairly important that we make some progress with the Bill. Therefore, I will say simply that I entirely endorse the importance of family law and the reciprocal arrangements with the EU, and I would like to see more effective reciprocal arrangements with many other countries. From my time as Lord Chancellor for 10 years I have strong and sad memories of receiving many people who complained that their children had been abducted and taken to a country from which they could not be brought back. That is not the way in the European Union and, fortunately, it is not the way in quite a number of other countries.

It is true, however, as the noble Baroness said, that you may be required to employ a lawyer. In fact, it is rather difficult to get your maintenance payments in this country, never mind the United States. I did my best to try to improve that situation with the CSA—but it has not proved very satisfactory, as the noble Baroness knows very well. It was a difficulty: many times people came to me and said that although they had an order from the court for money, they could not get a penny.

This is an important series of amendments and it is right that we should look at them. However, we must restrain ourselves from considering the negotiations if we are going to finish this Bill at all.

Baroness Deech Portrait Baroness Deech (CB)
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May I ask the Minister a few questions, because I suspect that his response is going to proceed on the basis that the Hague conventions are sufficient? It is true that the biggest number of abductions that come to our courts relate to Pakistan, the USA, Australia and then Poland. It would also be very sad if either we or the rest of the EU put ideology ahead of the welfare of children. Therefore, I want to know what the Minister’s prediction is as to the arrangements that might be made.

Overall, I feel that the amendment is perhaps too narrow. We have units in this country that study the effect of abduction: we have a permanent bureau, the International Centre for Missing and Exploited Children and the International Child Abduction and Contact Unit, which can look not just at the European Community countries but at the others. We need a global view of the welfare of children and cross-border abduction, not just an EU view. How does the Minister think we can cope, given that the EU takes apparently 164 days to deal with returned children, whereas we manage to do it in 90 days? For a small child, a matter of a few months is extremely important.

Is the Minister satisfied that we can swiftly and properly sign up to the 2007 Hague convention, which at the moment we are a party to only through the EU? We need to, and we should be able to, join it in our own right. Those are the questions that I put to the Minister.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, I am obliged. “Reciprocity” was the term used and emphasised by the noble Baroness, Lady Sherlock, and my noble and learned friend Lord Mackay of Clashfern. They both recognised the significance and the relevance of that term in the context of the issue we are discussing and of this Bill. They may have approached it from different directions, but there is a common recognition there. I will come back to that point in a moment, particularly in the context of this Bill and not the other Bills that may follow it in due course.

I acknowledge the commitment of the noble Baroness, Lady Sherlock, to family law and the rights that it provides to many of the most vulnerable in our society. I also extend my appreciation to the report on this subject produced last year by this House’s EU Justice Sub-Committee, under the chairmanship of the noble Baroness, Lady Kennedy. In addition, I understand that the noble Baroness, Lady Sherlock, met my noble friend Lord Callanan and officials to discuss this matter a week or so ago. I observe also that officials have engaged in discussions with a variety of groups, including Resolution and the Family Law Bar Association, and others at an EU level, to discuss this critical issue.

To the noble and learned Baroness, Lady Butler-Sloss, I say that I would be perfectly willing to meet—or at least to arrange a meeting with other Ministers who might be more directly involved in this issue—at some stage in order to discuss with all relevant and interested parties the issues that arise here.

I emphasise that the Government are committed to maintaining an effective system for the resolution of cross-border family law disputes once the UK leaves the EU in 2019—of course we are. Any system which requires cross-border dialogue and co-operation needs a common language to be effective. To that end, as part of our future partnership we want to agree a clear set of coherent common rules about: which country’s courts will hear a case in the event of a dispute—that is choice of jurisdiction; which country’s law will apply—that is choice of law; and a mutual recognition and enforcement of judgments across borders. That can be achieved within the EU and beyond the EU as well.

We are only beginning to embark on the negotiations of our future partnership with the EU 27 but we set out our position on this in a future partnership paper in August last year. That paper makes clear that an effective framework of civil judicial co-operation, which includes family law, is an important part of any deep partnership we want to establish with the remaining members of the EU. We believe that the optimum outcome for both sides will be a new agreement negotiated between the UK and EU as part of a future partnership which reflects our close existing relationship.

My noble and learned Friend, Lord Mackay of Clashfern made the point that the object of this Bill is to bring into our domestic law existing EU law so that we start out in the same place as the other members of the EU. We have to bear in mind the means of ensuring that litigation in a cross-border case involving UK and EU parties, wherever it takes place, can be as easy, efficient and cheap as possible. Such an agreement is necessary to provide confidence and certainty to families and individuals.

As the noble Baroness reminded us in backing up a point well made last year by the EU Justice Sub-Committee in its valuable report, reciprocity is key. This Bill can bring EU rules and regulations across into UK law, but it cannot place requirements on the remaining EU states. That is precisely why we want to negotiate a new deal with the EU and, as of this month, we are set to embark upon that negotiating process.

The current reciprocal rules on which we hope to model a new agreement provide a legal route to resolving what are often difficult and intractable problems. As noble Lords may know, and the noble Baroness readily appreciates, that can include determining in which member state a divorce takes place, child arrangements are made, maintenance issues are determined and, on the fraught issue of child abduction, the return of an abducted child is facilitated.

As I have mentioned, this area goes far beyond the EU. The EU, of course, is important, but we have the Hague conventions with respect to children, one in 1980 and one in 1996. The Hague convention in 2007 has the EU as a signatory, not the individual members of the EU. We will be taking steps to engage with the council on the Hague conventions in order that we can become individual signatories of that convention. I acknowledge the well-made point of the noble Baroness, Lady Sherlock, about the three-month time lapse that could potentially occur. We are mindful of that in setting about the process of negotiation because no one wants to see a gap in the process.

We also have the Lugano convention which engages with not only the EU, as a signatory, but also the other parties to it—Norway, Iceland and Switzerland. Returning to the point raised by the noble Lord about having regard to cases of another court, as between the Lugano convention and the EU it is agreed that each will have regard to the decisions of the other’s court. They are not bound by them or subject to the jurisdiction of the other, but they will have regard to them and take them into consideration when construing the rights and obligations that arise under these various conventions. So it is not making yourself subject to the CJEU but, in general terms, it is saying that you will respect its decisions and look at them for consideration.

Perhaps I may elaborate on that a little. The role of the CJEU is often either misunderstood or exaggerated in this context. What we are concerned about, generally speaking, is the ability of a court in one jurisdiction to recognise the pre-eminent jurisdiction of another country, the willingness of the courts in one country to recognise the orders made by the courts of another country, and the willingness of the courts in one country to enforce the judgments of another country in respect of these matters. Of course, if you are within the EU, the construction of a particular provision such as the Brussels convention—Brussels Ia, IIa and so on—would ultimately be a matter for the CJEU. However, in negotiating with our other partners, we recognise where we start from and the wide ambit of these conventions, and we understand how critical they are to family life going forward. No one is going to ignore them or turn their back on them, so I can assure noble Lords that we are intent on negotiating this. The precise way in which it will be done will have to be the subject of negotiation with our EU partners.

The noble Lord, Lord Carlile, asked me, as it were, to enumerate the negotiations that are ongoing, but so far we have been dealing with the separation agreement. From March we have set upon the negotiation of our future partnership; that is what the Prime Minister set out in her recent speech.

With regard to the other jurisdictions within the United Kingdom, officials within the Ministry of Justice are in regular contact with officials in Scotland and in Northern Ireland in regard to these matters. Of course we take account of those, and I hope that the noble Lord, Lord McConnell, will recognise that I am conscious that there are different laws in the different jurisdictions of the United Kingdom.

European Union (Withdrawal) Bill Debate

Full Debate: Read Full Debate
Department: Scotland Office

European Union (Withdrawal) Bill

Baroness Deech Excerpts
Lord Berkeley of Knighton Portrait Lord Berkeley of Knighton (CB)
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My Lords, I certainly would not attempt to trade cudgels with the noble and learned Lord but Amendments 37, 38 and 69 seem common sense to me. If one thinks in terms of child trafficking and one particular area that personally concerns me, female genital mutilation, there is the taking of young girls out of this country to be mutilated and brought back, and sometimes they are brought here to be mutilated. It surely makes sense that we have the strongest possible cross-border co-operation, whether we are in the EU or out of it.

Baroness Deech Portrait Baroness Deech (CB)
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My Lords, my noble and learned friend Lord Brown is of course right. There is a simple proposition in law, which is that the United Nations convention, like others, is not directly enforceable in this country—let alone between two individuals—until and unless it has been incorporated into our domestic law, which it has not been. On the face of it, if one brought it as it stands by our decision tonight, or later, how would we tackle things such as where the charter and the convention say that every child has the right to know and be brought up by his parents? How would we reconcile that with our very complicated and subtle laws about, for example, sperm donors or surrogate parents? How would we reconcile a child’s right to education with our very lax attitude towards home schooling and our inability to bring that under control? How would we reconcile it with the very sad fact that the majority of divorced and estranged fathers do not turn up to see their children, even though their children would like to and have a right to see them?

In other words, it is extremely complicated. It is not enough simply to wave a flag for what a good thing the United Nations convention is, which indeed it is, unless it is incorporated in a careful and detailed fashion into our law, which it has not been. It therefore cannot be by a side wind as this Bill goes through Parliament.

Baroness Sherlock Portrait Baroness Sherlock (Lab)
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My Lords, this has been an interesting and important debate and one that was much needed. As my noble friends Lady Massey of Darwen and Lady Lister and the noble Baroness, Lady Greengross, pointed out, there does not seem to have been enough attention paid to how Brexit may affect children. This point was made strongly in the briefing that a number of us attended and in the written materials given to us by an alliance of children’s organisations, and we are all very grateful for the work it put into briefing the House on this.

Many children’s charities are worried that neither the referendum nor the subsequent discussions engaged adequately with the voices of children and young people, especially those under 16, who still should have the opportunity to express their views.

A number of areas have been raised. I shall not go through them all, but we heard interesting comments around issues of cross-border co-operation by the noble Earl, Lord Dundee, and the noble Baroness, Lady Meacher, on the European arrest warrant, Europol and Eurojust. The noble Baronesses, Lady Meacher and Lady Greengross, touched on family law and cross-border co-operation, which I will not come back to, having spoken rather a lot on that on an earlier amendment, but I will be interested in anything the Minister has to add on that.

Two specific issues came up tonight. One is the status of children’s rights in the UK after Brexit and the other is we how retain appropriate mechanisms for ensuring that due regard is paid to children’s rights when policy and law are being developed. As my noble friend Lady Massey pointed out, a range of different types of EU regulations affect children. The way the key mechanisms come together is interesting. For example, the European Convention on Human Rights, the EU Charter of Fundamental Rights, particularly Article 24, which is based on the UNCRC in the first place, the UN Convention on the Rights of the Child and the constitutional commitment in Article 3(3) of the Treaty on European Union to protect the rights of the child in all EU activities affecting children. The interesting result of this is that measures enacted at EU level, whether or not they directly target children, are interpreted and applied by member states in a manner that is consistent with international children’s rights standards. That is what we are trying to chase down here today. The risk of losing some of that is what these amendments are concerned with.

Amendment 37, tabled by my noble friend Lady Massey of Darwen, and Amendments 38 and 39, tabled by the noble Baroness, Lady Greengross, seek to retain parts of the Charter of Fundamental Rights. Amendments 68, 69, 70, 97 and 158, tabled variously by my noble friend Lady Lister, the noble Baroness, Lady Meacher, and the noble Earl, Lord Listowel, refer in various ways to the UNCRC and the requirement at least to have regard to the provisions of sections that have been ratified by the UK or, in some cases, to go further than that. My noble friend Lord Foulkes and the noble Baroness, Lady Greengross, made a powerful case for the importance of attending to the right to dignity for older people, especially in care. I am sure the whole Committee will be interested to hear the Minister’s response on those important issues.

Looking at these different instruments, Ministers in general argue that removing the charter will not result in a reduction in rights and they cite their right-by-right analysis, but as we have heard sometimes that may simply indicate that aspects of a charter right are protected domestically without necessarily meaning that those rights are being fully protected. My noble friends Lady Massey and Lady Lister referred to a counsel’s opinion obtained by the EHRC which offered a very different assessment of the likely reduction in rights. I should declare a historical interest as an EHRC commissioner in the long-lost and greatly missed days before I joined this House and had the opportunity to spend many evenings discussing the importance of Brexit.

The EHRC briefing states that “some Charter rights”, for example the right for a child’s best interests to be a primary consideration in all actions taken by a public or private institution,

“have no equivalent protection in UK law. Furthermore, the Charter provides remedies, such as the ability for an individual to challenge laws that breach their fundamental rights, which are not otherwise available in UK law”.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned that we had a debate on day 2 in Committee specifically about the charter—led, if I may say so, brilliantly by my noble and learned friend Lord Goldsmith—but the reason that these amendments are being debated here is because when he responded to that debate, the noble and learned Lord, Lord Keen of Elie, did not make any reference to the issues raised about children and therefore people who are concerned about children’s rights want to understand how they will affect the people they are concerned about.

The noble and learned Lord said in reply:

“I understand the concerns expressed by some about whether some rights would somehow be left behind, but if we can and do identify a risk of such rights being left behind, we are entirely open to the proposition that we have to address that by way of amendment to the Bill, and we will seek to do that”.—[Official Report, 26/2/18; col. 573.]


Can the Minister tell us whether an audit has been done in respect of children’s rights to see whether any of them will accidentally be left behind? If so, what was the result, and if not, when will it be done?

What of the other measures? My noble friend Lady Lister quoted the reply given by the noble Lord, Lord Callanan, at Second Reading, in which he sought to reassure the House that children’s rights would continue to be protected by the Children Act 1989 and through our remaining party to the UNCRC. The UNCRC is hugely valuable, and I was pleased to hear it being defended so vigorously and passionately by my noble friend Lord Judd. But as many noble Lords have said, although we have ratified the UNCRC, the convention has not been fully incorporated into UK law and there are no effective sanctions for non-compliance.

The Children Act 1989, to which the noble Lord, Lord Callanan, referred, applies of course only to England and Wales. The problem for children in the UK as we leave the EU, as pointed out very clearly by my noble friend Lady Lister, is that there is no explicit constitutional commitment at a central UK level to children’s rights, and it is that level at which most EU legislation will be amended or repealed in the period post Brexit. We do not have any specific statutory provision requiring respect for children’s rights in lawmaking, and no general requirement to safeguard and promote the welfare of children in the UK.

As the noble Lord, Lord Wigley, pointed out, there are devolved provisions, such as the Rights of Children and Young Persons (Wales) Measure 2011 and the Children and Young People (Scotland) Act 2014. But as a number of noble Lords have pointed out, my noble friend Lady Massey among them, the Bill brings competence on matters that have been arranged under EU law back to Westminster and would seem, on the face of it, to prevent devolved nations from exercising their powers to stop or amend legislation from Westminster—even, as the noble Lord, Lord Wigley, pointed out, where it might contradict their own commitments to children’s rights. I look forward to hearing the Minister explain to the Committee how the Government will deal with that.

On one level, these conversations may sound academic, but the noble Lord, Lord Russell, made a passionate defence of why human rights matter. They matter for everybody, even—probably especially—for people we do not want to give them to, but they certainly matter for children. One reason they matter is because of what we are talking about at the end of this: how to ensure that our children are safeguarded, protected from harm and enabled to flourish. I know no Government would want to challenge that aspiration, but the danger is that where there is no specific requirement to pay due regard to the interests of children when deciding matters in legislation, law and practice, especially when the matters may not appear to specifically relate to children, there is a real danger those interests can, and do, get overlooked.

The noble Lord, Lord Russell, and the noble Baroness, Lady Meacher, gave some important examples of forced child labour and slavery, but there are also some examples that are wholly unrelated, on the face of it. Under current EU law, the free circulation of goods and services between member states—a very fundamental principle of course—has to be balanced against the need to ensure the welfare of children who are exposed to them. In post Brexit trade deals, how will similar safeguards be ensured and, if it is necessary, how can they be enforced legally?

The noble Lord, Lord Russell, referred to data protection. The general data protection regulation makes specific recommendations in respect of children, saying that they have the right to be properly informed in language they can easily understand. Children’s charities fear that without that, our children will specifically be targeted by marketing of things that will not be good for them.

Nearly a quarter of our population are children. As we have heard, they did not get to vote in the referendum, but they are the ones who will live with its consequences for the longest time. I doubt many of the parents who voted leave did so in order for their children to be less well protected than they are at the moment.

We should be celebrating and building on the significant contribution the UK has made to the EU’s work on promoting the best interests of children. I hope the Minister has heard the concern from around the Committee and that the Government’s previous assurance does not seem to have given the reassurance that he might have hoped. If the Government do not like these amendments, could he tell the Committee how they will ensure that our children will be protected in future?

European Union (Withdrawal) Bill

Baroness Deech Excerpts
Baroness Randerson Portrait Baroness Randerson
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The noble Lord underestimates the level of wisdom and expertise that sits within Parliament. The EU is managing its negotiations in line with the European Parliament. There is no way in which we need to adopt a different model; the supremacy of Parliament should remain.

Baroness Deech Portrait Baroness Deech (CB)
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Perhaps I may ask the Minister a question in relation to these amendments—I am sorry that I was a little late because of the early start; I may have missed the answer. Given that three times as many European students come here as ours go to Europe—in my experience, ours always wanted to go, and still go, to the USA; given that we know that we will not expel our migrants in any brutal fashion; given that they will presumably want to fly here; given that we have more Indian and Chinese students coming here than we have from the whole EU because our universities are so much better and far higher in the league table than any single continental European university, and given that Australian and Middle Eastern airlines fly in and out all the time, what is the problem? Is the pressure not on European nations? Are they perhaps begging us in the negotiation to allow them freedom of movement to come here to participate in the activities that I have mentioned? Cannot our airlines fly in exactly the same way as Australian, Middle Eastern and American airlines?

Lord Judd Portrait Lord Judd (Lab)
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My noble friend Lord Stevenson invited me to add my words to what he was saying, and I am very glad to do so, but I am associated with some of the other amendments as well. I want to speak honestly from past to past. In 1978, I can vividly remember enjoying being part of the Committee of Ministers in Europe working on mutual recognition of qualifications. What was so exciting about that discussion was that everyone in the room recognised that the issues with which we were dealing could not be contained within national frontiers, that they were all international in character and all crossed frontiers. We recognised that the way we looked at health, at the enhancement of the arts and at the quality of the professions as they built for our future would be best served if we fully co-operated. The measures we sought were there to support the whole concept of co-operation and enhancement of the quality of life for people in Europe. I find it utterly miserable that we have deserted that reality, have deserted that dream and are talking now about regulations to try to salvage a situation into which we should never have strayed.

European Union (Withdrawal) Bill

Baroness Deech Excerpts
Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018

(6 years, 1 month ago)

Lords Chamber
Read Full debate European Union (Withdrawal) Act 2018 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-R-III Third marshalled list for Report (PDF, 247KB) - (23 Apr 2018)
Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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My Lords, I support the amendment and would like to return to three points that I raised in Committee that Ministers have not adequately addressed.

First, I have asked four times how the fundamental requirement in the Good Friday agreement for an equivalent level of human rights protection in Northern Ireland and the Republic will be maintained if citizens of Northern Ireland can no longer look to the charter. The only substantive response that I have received so far was the irrelevant and erroneous point that, because the Good Friday agreement preceded the charter, it will not be affected by it. That is entirely to miss the point, because as I and other noble Lords, including my noble friend Lady Smith of Basildon, have said time and again the point is about equivalence. For the fifth time now, how will the foundational Good Friday agreement principle of equivalence of human rights protection be maintained in the absence of the charter? I can only conclude that I still have not received a convincing answer because there is no convincing answer.

Secondly, I asked the Minister in Committee whether he rejected the analysis of the Joint Committee on Human Rights of the Government’s right by right analysis, which identified a number of rights that will be lost in the absence of the charter. I draw attention in particular to children’s rights, to which we will be returning later at Report. It is a particularly important matter. The JCHR analysis said:

“Article 24 of the charter sets out the rights of the child. The Government states that the source of this right is the UN Convention on the Rights of the Child. This is not incorporated into domestic law and therefore does not confer enforceable rights upon individuals”.


The Minister’s response was:

“We have considered that analysis, and that is why I indicated that we were still looking at this. As I said, if rights are identified which are not in fact going to be incorporated into our domestic law in the absence of the charter, we will look very carefully at ensuring that those are not lost”.—[Official Report, 26/2/18; col. 570.]


The noble Lord, Lord Pannick, has already referred to the fact that certain rights will be lost. What has happened to this careful look again? I have not seen the government amendment which will ensure that we keep these rights. Not only the Joint Committee on Human Rights but the Equality and Human Rights Commission, as the noble Lord, Lord Pannick, said, the Bingham Centre and many others have identified a series of rights that will be lost. Does the Minister reject the Joint Committee on Human Rights’ analysis, the legal opinion given to the Equality and Human Rights Commission and everything that the highly respected Bingham Centre has said on this? What are the Government going to do about the rights that we will no longer have if we lose the charter?

Thirdly, in response to a claim by the noble Lord, Lord Faulks, that the Government have made clear that they have no intention of repealing the Human Rights Act, I quoted the last Conservative manifesto—bedtime reading for me, of course—which stated:

“we will consider our human rights legal framework when the process of leaving the EU concludes”.

I asked the Minister for an assurance about the Conservative Party’s long-term commitment to the Human Rights Act, but answer came there none. If the Government are planning to consider the human rights legal framework post Brexit, surely that is the time to look at the charter so that Parliament—I take the point made by my noble friend Lord Howarth, although he is perhaps not quite such a friend at this moment—can look at the whole human rights landscape holistically. That is when we should consider what happens to the future of the charter.

Baroness Deech Portrait Baroness Deech (CB)
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My Lords, there are good legal reasons to oppose this group of amendments. I will be brief. I shall not go into equivalence; for example, we already have child protection in English law.

First, we never intended to adopt the charter and did our best to opt out. It has never been analysed, debated or adopted by this House or indeed the other place. It entered our law only in 2013 after being rejected as unnecessary and confusing. It is badly drafted with its references to principles and other rights. Article 3, which refers to the prohibition of eugenic practices and the selection of persons, whatever that means, could be used by those who oppose embryo and stem cell research to block our leadership in that field. The wording in that article is more suitable for the much more conservative, unregulated and, indeed, backward European practices. The articles relating to dignity and scientific research are vague and woolly. Its scope and application are uncertain and meant for European institutions, not individual rights. Interpretation of the charter, if retained, would be a bonanza for lawyers involved in litigation. I can see decades of lucrative litigation stretching ahead, and I point out that I am not a practising lawyer.

Secondly, it offends against the rule of law and parliamentary sovereignty, in that it would allow our judges to invalidate British law, not just to declare it incompatible with human rights or to treat other laws as having priority but to set it aside and nullify it. If you believe in parliamentary sovereignty now and its full recovery after Brexit, if you believe that this House should make and unmake laws, while judges interpret and apply them, then the power to set aside our laws is unacceptable. It is in Article 51(1) of the charter and has been used on at least one occasion—with unfortunate results, as my noble and learned friend Lord Brown has just pointed out. The charter’s continuance would elevate judicial policy views over the elected Parliament and give judges the very contentious interpretation powers that they have indicated they do not wish to have in relation to EU law. This is the reason for opposing the amendment put forward by the noble Lord, Lord Faulks. Although one can understand where he is coming from, the interpretation of scope would be a nightmare, and cherry picking, as both amendments do, is surely not allowed in European areas.

--- Later in debate ---
Baroness Ludford Portrait Baroness Ludford (LD)
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The noble Baroness just gave a number of instances where she said the charter was of no use. That is for the very good reason that the charter applies only to EU institutions or member states’ implementation of EU law. If she is arguing that the charter should have gone further and deeper into national law that has nothing to do with EU law, that is a very debatable point, but it does not.

Baroness Deech Portrait Baroness Deech
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The noble Baroness makes a very good point as to why the retention of the charter would not be of any use once we have left Europe.

Lord Faulks Portrait Lord Faulks (Con)
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My Lords, the arguments in favour of the amendment seem to come down to two. One is that we are leaving the EU so we need all the rights that we can possibly get, and we need them as protected as widely as we possibly can. The second seems to be, “Why pick on the charter if you are retaining the rest of EU law?” I will not repeat all the arguments that we have already heard, and I will endeavour to be brief.

I have studied the Government’s analysis of the various rights contained in the charter, and almost all of them seem to be covered by our law in statute, by common law or by the European convention that is now part of our law by the Human Rights Act. Indeed the noble and learned Lord, Lord Goldsmith, was right all those years ago when he said that the charter added nothing. Important though rights are, and ensuring their protection must be a fundamental part of what we do in this House, we should not presume that every convention, charter or other aspirational document must necessarily result in justiciable rights—that is, rights that you can sue on. If the amendment is passed, I will be able to bring a claim on the basis that my dignity has been invaded. Of course dignity is very important, but if we had thought that it was something that ought to give rise to a claim for damages then over our long legal history either our judges would have invented such a claim or Parliament would have done so. We seem to have got on reasonably well without it. How are judges supposed to make sense of this to make it legally coherent?

Many noble Lords may have noticed that the amendment specifically excludes the preamble to the charter and Chapter V—understandably, because Chapter V is to do with European elections. But the preamble frames the charter and explains what it is all about. It is quite a lengthy part of the charter, and begins:

“The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values”.


So the whole charter is premised on membership of the European Union.

Let me take just two further examples from the charter. Article 16 confers,

“freedom to conduct a business in accordance with Union law and national laws and practice”.

Article 36 states:

“The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaties, in order to promote the social and territorial cohesion of the Union”.


We are leaving the European Union. As the noble Baroness, Lady Ludford, said, the charter specifically deals with EU institutions acting in the scope of the EU law. How we are supposed to have it in our law to be relied on—justiciable—after we have left the European Union does not seem to me to make much sense. Much good law has come from Europe, I entirely accept, but we should not take a theological attitude towards it and assume that it has some greater status than anything passed by our legislature.

My final concern is that the amendment would directly frustrate the purpose of the Bill, which is to provide legal clarity as we leave the European Union. Profitable litigation is far more likely to flow if the charter is a part of our law; not the other way round.

I have an amendment to the clause, as the noble Baroness, Lady Deech, pointed out. The charter, a relatively recent document, was supposed to reflect the jurisprudence of the European court, and I do not quarrel with it as a summary of the way in which the court has approached various issues. It was in those circumstances that I thought it might be helpful to suggest that when one was interpreting a particular piece of retained law, if and in so far as the charter was part of it, one might look at the charter. We certainly do not want to be bound by the charter in future. My noble and learned friend may tell me that the answer to my amendment lies in Clause 5(5), although I have read that more than once and find it somewhat difficult to understand.

Suffice it to say that if we have the charter as part of our law in future, it will make very little sense. Who will interpret the charter? Of course, it is the European Court of Justice, with all the shortcomings pointed out by the noble Baroness, Lady Deech. This would be a great mistake.

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I shall finish on this. I believe that today when we vote we must honour the generations of the past and their sacrifices. We must place ourselves in their positions, their times and situations. As Shakespeare brilliantly said, “Imagine you are the stranger, with your children upon your back, your family at your side and your belongings at your feet. Imagine you are a stranger and bid them removed, and show ‘your mountainish inhumanity’”.
Baroness Deech Portrait Baroness Deech
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Can the noble Lord explain why the Equality Act 2010, with a very comprehensive list of non-discrimination, is inadequate?

Lord Cashman Portrait Lord Cashman
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Because in rights newly achieved we can never have too much challenge or support for a principle that came out of the treaty of Amsterdam of 1997, which for the first time gave a legal basis to the Community to take action based on non-discrimination on the grounds of race, ethnicity, religion, belief, age, disability and sexual orientation. Arguably, the very rights to which the noble Baroness referred came out of the treaty of Amsterdam of 1997.

I finish on this—on other generations of the past and their sacrifices by defending the charter, along with the Human Rights Act and the European Convention on Human Rights, both of which, as I have said, have been singled out rather worryingly in the 2017 Conservative Party manifesto. Let us retain the charter and reassure those generations that, when it comes to the defence of human rights and equalities, our arsenal is not depleted but well stocked and ready.

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Lord Goldsmith Portrait Lord Goldsmith
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I come back to the central point I want to make. The Government made it clear and promised that rights would remain the same on exit day, but they could then be subject to change through the processes agreed and determined by this Parliament. Of all EU laws, the charter alone is being excluded. That drives one to question why that should be. Is it an ideological reason? Is it not wanting to see something that has “EU” attached to it? Or is it—which will be even more sinister and would worry me enormously—that there is an unhappiness and suspicion about fundamental rights? If there is any element at all that what lies behind this is a suspicion about fundamental rights and a suspicion that people should not be able to exercise those rights, that would be deeply unsatisfactory and a very good reason for not accepting the Government’s exclusion of this.

Baroness Deech Portrait Baroness Deech
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Would the noble and learned Lord agree that what is special about this is that the judges of the ECJ, whatever sort of court he estimates that to be, will keep interpreting those rather vague principles on and on, decade after decade, and that all those interpretations will have to be brought back here, unforeseeable and maybe irrelevant as they are? That is what is different about it.

Lord Goldsmith Portrait Lord Goldsmith
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I am advised that that is not a request for clarification which is appropriate on Report. I have dealt with this question before. After exit day, it will be British judges who interpret the EU retained law. There are questions about regard they will have to decisions which relate to the same law afterwards—those we will debate at another time during Report—but the idea that, if the charter is included, there will be references to the Court of Justice of the European Union is simply not right.

I have been driven, and I apologise for it, to the view that it is an ideological reason, and we have heard one or two speeches which seem to support that, but the people outside here—it is delightful that we still call them the people on the Clapham omnibus in court and in this place—will wonder what it is. They will look at the charter; they will see the rights in it, all of which they would think are very good things to have—they would not perhaps understand all the details as when they apply and when they do not—and wonder what the Government are doing in saying that it alone is excluded. There has never been a good answer for that. I do not anticipate that we will get it now either. The noble and learned Lord asks why not. It is because he and I have spoken about this several times and I have not heard it yet.

European Union (Withdrawal) Bill

Baroness Deech Excerpts
Lord Tyler Portrait Lord Tyler (LD)
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My Lords, as a signatory to this amendment and the others in this group, I encourage Members to look at the words of the amendment and how they will alter the Bill. The Bill currently reads:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate”,


and so on, so the Minister still has the initiative. It is the criteria by which he takes that initiative that are important. Our amendment would simply take out a phrase so the Bill would read: “A Minister of the Crown may by regulations make such provision as is necessary”.

I shall go back to where the Government led us at the beginning of this process in a moment, but, first, when the Minister responds to the debate, which in Committee and to some extent this afternoon has been characterised by some support for this group of amendments, I plead with him not to rely on the rather flimsy arguments contained in his correspondence with our Delegated Powers Committee. Frankly, they are not worthy of him.

The same goes for his justification in Committee for government Amendments 83C, 83F and 83G to Schedule 7. We will deal with them in detail later, but they are an attempt to derail the formidable arguments for insisting on the relatively objective “necessary” instead of the blatantly subjective “appropriate” throughout Clauses 7, 9 and 17, which are the subject of this group.

As the noble Lord, Lord Lisvane, set out when moving this amendment, all the amendments in this group would replace “the Minister considers appropriate”—what could be more personal than that, where the Minister personally decides that something is appropriate?—with the strictly more objective test of “necessary”. That is the salient difference. That was the subject of much discussion in Committee, and other speakers have emphasised it this afternoon.

Frankly, the Minister’s arguments in his correspondence with the committee do not face up to this issue. For brevity, at this stage I will confine myself to just one or two examples. He asked us to explain “necessary for what purpose?”. The answer is to be found in his Bill. In Clause 7(1), by substituting “is necessary” for the phrase “the Minister considers appropriate”, it is clear what the regulation would do and why it would be necessary. I shall read it in full,

“such provision as the Minister considers”,

necessary,

“to prevent, remedy or mitigate … any failure … or … deficiency arising from the withdrawal of the United Kingdom from the EU”.

It is absolutely clear. Instead of asking why we think something is necessary, he should look in his Bill. That is precisely what Amendment 31 would secure.

The Government have further suggested that there is no material difference between “appropriate” and “necessary”. Why are we having this discussion if there is no difference? Our cross-party, non-partisan committee, which is answerable to your Lordships’ House, has unanimously disagreed. “Appropriate” means suitable, proper and apt, and other words which could be used; “necessary” means that it is judged objectively to be needed.

We should recall that the original position of the Government, when they set out what they intended to do with the Bill, was that only changes needed to make retained EU law work after exit day would be implemented. This amendment fulfils their promise. When it comes to the belated attempt to block these amendments, the Government’s reliance on a statement of “good reasons” for subjective ministerial decisions is totally inadequate, as the noble Lord, Lord Lisvane, has already said.

I return to my original point: the Minister has failed to persuade the cross-party, non-partisan Delegated Powers Committee, which looks very carefully at these issues on behalf of your Lordships’ House, and which has now reported to this effect to your Lordships’ House. So far, it would seem that many Members are similarly unpersuaded.

I hope I will be forgiven for sounding a little bit like Little Lord Echo, but speaker after speaker, at every stage of the Bill, has emphasised that this must not be used as an opportunity to turn the Executive into an elective dictatorship. It is the British Parliament that must take back control, not a minority Government. As a former Member of Parliament, I hope that the Commons will concur with your Lordships’ House and the Delegated Powers Committee on this point. Are the Government really going to go into the last ditch in defence of this apparently indefensible position?

Baroness Deech Portrait Baroness Deech (CB)
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My Lords, I am trying to clarify what the noble Baroness, Lady Falkner, said. I think the issue is not “appropriate” versus “necessary” but “the Minister considers”. I believe the point the noble Baroness was making is that, if something has to be “necessary”, that leaves it open for a court to say whether or not it was necessary. If you say “the Minister considers it”, then the issue is whether the Minister genuinely considers it.

Lord Goldsmith Portrait Lord Goldsmith (Lab)
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My Lords, and what is wrong with that?

In Committee, in a most powerful speech, the noble Lord, Lord Wilson of Dinton, with his vast experience from inside the Civil Service, from knowing just what civil servants and Ministers would like to do, gave your Lordships the advice that,

“in this case, I think the scale of the powers proposed is so extensive that we should lean against giving Ministers plump cushions of legal protection”—

a very telling phrase. He continued:

“it should be the strict discipline of an objective test of what is necessary”.—[Official Report, 7/3/18; col. 1180.]

I respectfully completely agree with that. It is absolutely the case that, in circumstances where great powers are being given, one needs to be very clear where the discretion lies. Here it is not just Ministers but civil servants. We have been told that there are 109 Ministers, but under the Carltona principle—I have made this point several times and no one has yet contradicted it—many civil servants themselves in effect exercise these powers in the name of the Minister.

So Ministers and civil servants do what they think is appropriate. That is very different from things that are necessary in order to achieve the objectives set out in the clause. As a practising lawyer, I have no difficulty with the concept of what is necessary, but I believe—to use the words of the noble Baroness, Lady Falkner of Margravine, in a different context—that there is a profound distinction between saying, “You can do what you as a Minister consider appropriate”, and saying, “You can do only what is necessary to achieve these objectives”. If this House has a responsibility, I respectfully suggest that it is to ensure that we do not give the Executive more power than is necessary in order to achieve their objectives. The amendment would achieve that. If the Government want to come back with further clarification on the meaning of “necessary”, although I do not believe that is necessary at all, they can do so.