European Union (Withdrawal) Bill

Baroness Deech Excerpts

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

[Baroness Lister of Burtersett (Lab)]

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 (CB)]

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.

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[Baroness Ludford (LD)]

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]

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 (Con)]

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]

Can the noble Lord explain why the Equality Act 2010, with a very comprehensive list of non-discrimination, is inadequate?

[Lord Cashman]

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]

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]

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]

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.