European Union (Withdrawal) Bill

Baroness Ludford Excerpts

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

And what a failure the charter has been in protecting human rights in Europe. On Poland’s interference with the judiciary, Hungary’s interference with higher education, the imprisonment of Catalonian independence leaders, the diminished freedom of the press in Slovakia and Bulgaria, the rise of extremist right-wing parties and the treatment of Roma and migrants, the charter is impotent. For these reasons, a vote for the amendments to keep the charter is tantamount to a vote of no confidence in the ability of our judges and this Parliament to make and interpret the law.

[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.

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[Lord Shinkwin (Con)]

My Lords, I put on record my thanks to the noble Lord, Lord Howarth of Newport, with whose arguments on Amendment 15 I entirely agree, for his long-standing championing and reaffirming of disability rights both in this House and in the other place.

However, I have a question that I am struggling with and it relates to the brilliance of the noble Lord, Lord Pannick, of which we have just heard. I might be disheartened by the noble Lord’s arguments but his genius fills me with confidence that Parliament is well able to assert itself and to advance and protect rights after Brexit. Do we not believe in ourselves and in our proud history of championing rights? I believe that we have much to be proud of, and I personally have much to be grateful to our Parliament for, and your Lordships’ House in particular, due to the invaluable help it has given me and the charities I had the privilege of working with for almost 20 years spent in the voluntary sector.

I recall the crucial support that your Lordships’ House gave the Royal British Legion’s Honour the Covenant campaign when I was its head of public affairs. As a result, David Cameron, to his lasting credit, enshrined the principles of the Armed Forces covenant in law. I remember vividly the pivotal role that your Lordships’ House played in saving the crucial position of the chief coroner during the passage of the Public Bodies Bill, thereby securing long-overdue reforms to the coroners service to the great benefit of bereaved Armed Forces families and, indeed, bereaved families in general. However, I do not recall that those campaigns and changes to the law took place at the behest of the EU, the ECJ or the European Charter of Fundamental Rights. Indeed, the EU, as I recall, barely got a mention.

As a child, my condition meant that I was for ever breaking my legs. I lost count of how many times I had to learn to walk again. You would think that you would remember something so basic, but you do not—not after months in bed with your leg in traction and not when you are afraid to put one foot in front of the other for fear of a fracture. You forget how to walk. I fear that we too have forgotten how to walk, and we need urgently to remember. We need to remember how to walk tall.

We need to reflect the simple fact that the people have spoken and they have chosen, by a clear majority, to leave the EU and to take back control of our laws. The UK is their country, not ours; the UK Parliament is theirs, not ours. We may have been their masters once; we are not now. We are their servants. They are the masters, and they have spoken in a once-in-a-generation referendum.

We do not need this charter. We in this great British Parliament set the benchmark for human rights. That was not done by the EU and certainly not by the ECJ, whose judgments, as we have already heard, are informed by the centrifugal force of everything that emanates from the rejected EU political project of ever closer union.

I conclude by agreeing with the noble Baroness, Lady Deech, that a vote in support of Amendment 15 would be a vote of no confidence in Parliament and in your Lordships’ House. It would be a vote of disdain for the clear majority of the British people, who voted to leave the EU. I urge noble Lords not to support the amendment.

[Baroness Ludford]

My Lords, I must have explained myself poorly in my intervention on the noble Baroness, Lady Deech, or else the noble Lord, Lord Faulks, has misunderstood me. I think I said that the charter did apply when national law implemented EU law, not just when it is EU institutions, and this Bill is meant to freeze EU law. I do not think there has been a response to the point made by the noble Lord, Lord Pannick: why, uniquely, should the charter be the only element that is left out? As one commentator, Professor Steve Peers, has said, taking the charter out of the case law is like trying to take the egg out of the omelette.

The charter is the key to the rest of retained EU law and its exclusion runs counter to the claim of continuity and certainty that this Bill is meant to deliver. The Explanatory Notes to the Bill say that:

“As a general rule, the same rules and laws will apply on the day after exit as on the day before”,


and that one of the four main functions of the Bill is that it,

“converts EU law as it stands at the moment of exit into domestic law before the UK leaves the EU”.

It will then be for Parliament, and where appropriate the devolved legislatures, to make any future changes. Why should the charter be different from the rest of EU law which is retained under this Bill?

It is perfectly possible to retain the charter and deal with any redundant sections after exit, just like for every other part of retained EU law. If the charter genuinely adds nothing useful, then that can be sorted out in the same way as for other EU law provisions. The arguments can take place later. Yet the only exception to the Government’s general approach is Clause 5(4), which provides that the charter will no longer apply in UK domestic law after exit day. As the noble Lord, Lord Pannick, has said in Committee and now, that position is simply unsustainable.

The Government’s rationale that it is not necessary to retain the charter because the rights it contains can all be found elsewhere in domestic law, and consequently that there will be no loss of rights, is disagreed with in advice from Jason Coppel QC for the Equalities and Human Rights Commission. He highlights that there will be gaps in protection—for instance, in relation to children’s rights, data protection and non-discrimination.

Various articles of the charter have been referred to in the debate so far. Article 1, providing that “Human dignity is inviolable”, was objected to, but it has been used by the European Court of Justice to help protect LGBT asylum seekers from inappropriate psychological tests and in cases concerning the extradition of individuals to countries where they would face unacceptable detention conditions. That is not some airy-fairy right that we should not care about.

Mention has been made of Article 8:

“the right to the protection of personal data”.

I find it a bit rich that this was relied upon until the Secretary of State pulled out of what was originally the David Watson case, in his successful challenge to DRIPA. Article 8 will not be fully and clearly replicated after withdrawal, even with the retention of the general data protection regulation.

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[Lord Low of Dalston (CB)]

My Lords, I think that we are probably reaching the end of the debate.

[Baroness Ludford]

I am just concluding my remarks. I want simply to support what was said by the noble Baroness, Lady Lister, about the importance of the Northern Ireland issue. You cannot have differing rights on each side of the border. The European Commission has said that the Good Friday agreement requires equivalent standards of protection of rights on both sides of the border. I simply remind noble Lords that Jacob Rees-Mogg has opined that EU sanctions for breach of the withdrawal agreement would go against the EU’s own charter of fundamental rights. The irony and hypocrisy of that statement require no elaboration from me.

[Lord Trevethin and Oaksey (CB)]

My Lords—

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Moved by

[Baroness Ludford]

30: After Clause 6, insert the following new Clause—
“Internal security, justice and police co-operation and counter-terrorism
The Secretary of State must ensure that before exit day all necessary action has been taken to continue the United Kingdom’s participation in EU measures to promote internal security, justice and police co-operation and counter-terrorism to the extent that—(a) the United Kingdom has opted in to those measures,(b) they will be incorporated into UK law as retained EU law, and(c) they will not remove or diminish any rights of the individual in the criminal justice process.”

[Baroness Ludford]

I find myself in a similar position, in moving this amendment on behalf of myself, my noble friend Lord Paddick and the noble Lord, Lord Judd, to my noble friend Lord Wallace in moving his amendment on foreign and defence policy and external security. This is about internal security, where, in theory, we are rather further forward in designing the wiring diagrams that the noble Lord, Lord Kerr, talked about.

In her speech at the Munich Security Conference, the Prime Minister said a fair amount about these issues of extradition, Europol and data access and exchange. But there are a few little problems on the way. I very much look forward to hearing from the Minister some concrete answers about how a UK-EU security treaty will be taken forward and how it will address some of the problems identified so far. One concerns extradition. The Minister will be aware that in article 168 of the draft withdrawal agreement there is a facility allowing that the EU,

“in respect of any of its Member States which have raised reasons related to its fundamental structures, may declare that, during the transition period, that Member State will not surrender its nationals pursuant to”,

the European arrest warrant framework decision, and then the UK could declare similarly that it will not surrender its nationals.

I have to say that when Ministers from the Ministry of Justice and DExEU came to the EU Justice Sub-Committee four weeks ago, they did not appear to know what this article meant. It meant that some countries would not be able to extradite or surrender their nationals to the UK because they would have to change their constitutions. The one we all know about is Germany, which changed its constitution to be able to extradite its nationals to a fellow EU state under the European arrest warrant, but that did not apply to non-EU states. One reason why the surrender agreement with Norway is still not in force 17 years after negotiations began is that I understand there are 88 pages of declarations and notifications surrounding it, a lot of which will be to do with non-extradition of nationals. That would be a very serious omission from an extradition agreement.

Do the Government know which member states have already indicated that, for constitutional reasons, they would refuse to extradite their nationals to us or would find it impossible or politically difficult to change their constitutions, which in some cases might mean a referendum—perhaps no Governments like referenda—either during the transition or as part of the future relationship? What is the extent of that problem? If we are not going to be able to rely on the European arrest warrant, what is the situation in terms of falling back on bilateral agreements or the 1957 Council of Europe convention? How many member states have maintained in their national law the provisions for extradition outside the European arrest warrant and would they be willing to bring things back in just for us?

On Europol, are we looking at something like the Denmark model? Denmark has an opt out from all justice and home affairs measures, even though it is an EU member state and has no option to opt in on a case-by-case basis, so it is a third country for the purposes of Europol, with no decision-making powers and no access to the Europol database. Do the Government seriously expect to do better than Denmark on participation in Europol?

On enforcement and dispute resolution, is it conceivable that it would not be a requirement of a future UK-EU extradition arrangement for the UK to take account of CJEU case law and charter rights post Brexit? For instance, what is the Government’s analysis of the Irish court’s refusal to extradite to the UK and make a reference to the CJEU because of concerns about lower protections here post Brexit? These difficulties are not just going to arise after next March: they are arising already because of fears that our safeguards and protections are not high enough. I am sure that the Government are extremely grateful that they are being pushed to take these matters into account by this Chamber as well as by the European Council guidelines. Three months ago, the European Commission made a presentation of the main issues affecting police and judicial co-operation with the UK after Brexit. Two very pertinent factors were, first:

“Respect for fundamental rights, essentially equivalent data protection standards”,


and, secondly:

“Strength of enforcement & dispute settlement mechanisms”.


Those similar factors were stressed in the European Council guidelines of 23 March.

Norway, Switzerland and Iceland must not only make contributions to the EU budget to participate in Schengen laws and policies but also accept the supremacy of the CJEU over their national courts in Schengen matters. How do the Government intend to maintain access to one of the most important databases, the Schengen Information System—at the moment, we have access for the policing side though not for immigration—if they neither contribute to the budget nor accept the supremacy of the CJEU? There is no precedent for a non-EU, non-Schengen country having access to the SIS. Do the Government believe that they can, none the less, manage to gain such access? In her Munich speech, the Prime Minister said that,

“when participating in EU agencies the UK will respect the remit of the European Court of Justice”.

However, in the very next sentence, she said that,

“a principled but pragmatic solution to close legal co-operation will be needed to respect our unique status as a third country with our own sovereign legal order”.

That rather seemed to undermine respecting the remit of the ECJ. So which is it? Are we going to respect the remit of the ECJ or insist on our own sovereign legal order? I assume it cannot be both.

On the exchange of data, the Government have not, to my knowledge, confirmed that they will seek an adequacy decision from the Commission under the GDPR. They talked in the partnership paper last August about,

“building on the existing adequacy model”,

as if we could do better, and then the Prime Minister referred in the Munich speech to a “bespoke arrangement”—a term we have become quite familiar with. Would the Government not find it helpful to accept the retention of the Charter of Fundamental Rights, which we have tried to assist in today, when they try to demonstrate that they are upholding high data protection standards?

One of the issues, to which we have referred several times in this Chamber, is that our data processing for national security purposes will come under the spotlight in a way that does not happen while we are an EU member state, because national security is outside the competence of the EU. However, once we are outside the purview of the EU, our Investigatory Powers Act and other provisions—including quite possibly our co-operation with the United States on intelligence data matters—will be scrutinised as to whether they sufficiently safeguard privacy. The noble Lord, Lord Callanan, who is sitting next to the Minister who will reply, will know as much as I do from our experience from 2013 how difficult those issues can be. The Court of Justice struck down the safe harbour agreement because of worries about data transfers and data access by security agencies in the United States.

I hope I have given the noble Baroness the Minister a few small questions—or rather the noble Lord; I am sorry, it is difficult to keep up—which deserve quite meaty answers. There was no beef in the response on security and defence policy, but the Prime Minister herself has been much more explicit about the possible arrangements on internal security. I draw attention to the wording of the amendment, which includes showing how the measures,

“will not remove or diminish any rights of the individual in the criminal justice process”.

We participate in some procedural rights—not as many as some of us would like—but we need to uphold the rights of defendants and victims in the criminal justice process as well as to enable the police to catch criminals. I therefore look forward to learning from the Minister some quite explicit and specific details about how the UK-EU security treaty is advancing. I beg to move.

[Lord Judd]

My Lords, in warmly supporting this amendment, I will make only two points. First, crime is now global and international; trafficking, drugs and terrorism know no frontiers. When I was serving on the Home Affairs Committee and we looked into these matters, I was impressed by the way in which one person after another who had front-line operational responsibility said how important the European dimension was to them, how any diminution in the effectiveness of co-operation with Europe would not be in the interests of the protection of the British people, and that we needed our colleagues in Europe. When asked, “But what about those elements of Europe which might not be as well equipped professionally and in other ways to undertake the tasks as we regard ourselves as being?”, the answer was, on the whole, very firm. They said, “We had better help them to become as effective and not walk away from them because we shall need them”. This amendment is therefore very important and I commend it to the Minister.

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[Lord Callanan]

It is certainly our intention but, as I have said, these are bilateral relationships and the discussions are continuing. That is one part of the withdrawal agreement that was not quite finalised and so, literally, discussions are continuing on it.

The noble Baroness, Lady Ludford, also asked me about databases and the use of EU data on UK databases and vice versa. This is also a matter for negotiations. Our aim is to ensure that we and our EU partners continue to share and use personal data where there are clear benefits to public safety, subject of course to the appropriate safeguards.

For all of those reasons, and given the Government’s clear intentions to continue and strengthen our close collaboration on security, law enforcement and criminal justice after we leave, and given that the new clauses exceed the purpose of this Bill, I invite the noble Baroness to withdraw her amendment. For the sake of clarity, I should say that the Government will not reflect further on this amendment and so, if the noble Baroness wishes, she should take the opportunity to test the opinion of the House this evening.

[Baroness Ludford]

I am quite cross, really. With all respect to the Minister, that is a disrespectful response. Twenty-one months after the referendum, there was not even as much detail in the Minister’s reply as there was in the Prime Minister’s Munich speech. For instance, the Minister said that a new treaty will require respect for legal sovereignty. As I mentioned to him, the Prime Minister said:

“when participating in EU agencies the UK will respect the remit of the European Court of Justice”.

What does that mean? The Minister has enlightened me not a jot on that, nor on the follow-up phrase about,

“our unique status as a third country with our own sovereign legal order”,

which was the only one he talked about.

It is farcical that the Prime Minister can make a speech containing more detail than the Minister is prepared to give in response to an amendment in this House. We are being treated as of no account whatever. The way in which Ministers are responding on this is disrespectful. It is obvious that there are major challenges in getting a UK-EU security treaty. Many commentators are writing about it, with various opinions and insights, but the Government are not among them, at least when it comes to telling us in Parliament. Even though we are the unelected House—I am not aware that they are telling the elected House in any more detail either—it seems poor that this is what we have become and have been reduced to when we seek knowledge about how Parliament will take back control of our future relationship with the EU post Brexit.

We will have to reflect on another way in which to take this issue forward. I hope the Minister will understand that his reply was not worth the paper it was written on. That said, I beg leave to withdraw the amendment.

Amendment 30 withdrawn.