European Union (Withdrawal) Bill

Debate between Baroness Deech and Baroness Lister of Burtersett

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.

European Union (Withdrawal) Bill

Debate between Baroness Deech and Baroness Lister of Burtersett

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

[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.