European Union (Withdrawal) Bill

Baroness Deech Excerpts

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

[Viscount Hailsham (Con)]

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 (CB)]

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]

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]

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]

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]

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]

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 (CB)]

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]

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 (PC)]

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]

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]

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]

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]

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.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

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.