European Union (Withdrawal) Bill

Charlie Elphicke Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Leslie]

Yes, the right hon. Lady makes a good argument about how we are transposing certain bits of European legislation into UK law but not necessarily the protections to go alongside them. That is the point we need an explanation on. Why not bring those with us?

[Charlie Elphicke (Dover) (Ind)]

I have been listening carefully to the hon. Gentleman’s argument on transposing the charter of fundamental rights into British law. Is it his case that it should be transposed as a cut and paste or that it should be adapted? Article 39 talks about the right to stand for the European Parliament, article 44 talks about the right to petition the European Parliament and article 45 talks about freedom of movement, all of which would presumably no longer be relevant after we leave the EU.

[Mr Leslie]

I have been in Parliament since 1997, on and off, and I find that amendments can often be rebutted for a number of reasons but when people say there is a technical deficiency that tends to be the last refuge of the Minister. There may well be arguments that say that we need to cut and paste the charter of fundamental rights or the Francovich provisions, but to do so having regard to changes in the language to take account of new circumstances. Everybody can recognise the need for consequential or supplemental amendments to the legislation sometimes, but let us not kid ourselves: we are talking about some far bigger principles here. I hope the hon. Gentleman would not diminish the importance of the charter of fundamental rights and those myriad legal rights and protections we have that are so essential for the specific and general reasons I have given in this debate.

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[Mr Grieve]

Yes, absolutely, and that was what new clause 55 sought to achieve, although it did provide the opportunity of looking at purely technical amendments—those would be really technical, and I do not wish to burden the Committee with complete trivia.

[Charlie Elphicke]

My right hon. and learned Friend is making a typically thoughtful and deeply considered speech. On a point of clarification, would it be right to say that there are, effectively, three different categories in the charter of fundamental rights? There are those rights that, as I indicated earlier, do not make a lot of sense in transposition, such as the right to petition the European Parliament. There are those rights that are already covered by the Human Rights Act, such as the right to life and the right to property. However, there is a third category of rights, such as that in article 41, that are not covered by our own jurisprudence and legal system, and they might usefully be so in due course.

[Mr Grieve]

My hon. Friend is absolutely right. He has correctly analysed what the issues are and the categories of rights on which we probably ought to focus.

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Despite the Government’s oft-stated desire to secure an adequacy agreement that will retain the UK’s status as a safe recipient of personal data from the EU and further afield, I fear that their lack of action in preparing the ground properly to secure such an adequacy agreement by default or otherwise following the negotiations is causing great concern to businesses that rely heavily on the free flow of data. I urge the Government to accept amendment 151.

[Charlie Elphicke]

I had occasion to consider deeply the matter of rights and human rights when I drafted, tabled and had debated in this place a British Bill of Rights—the Human Rights Act 1998 (Repeal and Substitution) Bill. People said to me that that could not be done, that it could not be drafted and that it was an impossible project. However, with the help and counsel of many hon. and learned Friends—not least my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who has just spoken with power, force and vigour—I was able to construct and present a Bill of Rights to this House. That is relevant to this debate because there were three key questions involved. The first question was: what are the rights? The second was: how do we interpret them? The third was: which court should decide on those rights?

Let us take the first question. What are the rights? Some rights are so basic and self-evidently true that they are not even rights at all. They are values. They go to the heart of our constitution, of our foundations, of what we believe in as a country, of what we are about and of our way of life. They involve basic stuff such as the rule of law, natural justice, the right to a fair hearing and the presumption of innocence. Those are the fundamental values of what we are about as a nation and of what we hold to be self-evident and true. When they are trampled upon, there is uproar in this place and across the country because we know in our hearts that those are the values that we hold dear. They are not rights; they are values.

There are also rights, in the Human Rights Act 1998, that we hold to be self-evident and true. They are called second amendment rights in America, and they include the right to a free press, the right to free speech, the right to determine one’s religion and the right of association. Those are important rights that go to the heart of what we are about and that we call values. Then there are the many rights set out in the European convention on human rights that have been built mainly in our own constitution and our own history. They did not just begin in 1998. They are rights that we have taken to be self-evident and true for many years, and they have found their way into the Human Rights Act, and the human rights code—a document to which it is hard to object.

Then we come to the issue of interpretation, and that is where the problems begin. The European Court of Human Rights adopts an interpretation mechanism that I call objective. It asks: do we have the right to family life, yes or no? If we have that right, we cannot be extradited in certain cases. In our own system, we tend to take what I call a more subjective view. We look at all the facts and circumstances of a case. In interpreting that right, we ask whether someone should be able to stand on that right to family life, given their conduct if, for example, they had committed a crime or run someone over. Having examined all the facts and circumstances of the case, we would say that they should not be able to stand on that right because their conduct means that they should not be allowed, ethically and in equity, to do so. That is where the British people were in so many extradition cases. They thought, “These are European rights and they are all wrong.” They are not necessarily wrong, but their interpretation was not right and did not sit well with our values, our way of life and our understanding of how principles of law should be interpreted.

The third question is: what is the proper court? I made sure that my British Bill of Rights included a clause on interpretation. It stated: first, that all facts and circumstances of a case should be considered, giving judges a wide discretion to make a full decision; and secondly, that the court should be the Supreme Court. For me, it was about making the Supreme Court supreme. I did not see why our rights as a nation should be subject to the European Court of Human Rights, or indeed to the European Court of Justice, when our own Supreme Court can determine those things very effectively. I agree with my hon. and learned Friend the Member for Torridge and West Devon that it should be this House that constructs rights, that their interpretation should be in line with our own canons of interpretation as a nation, and that the Supreme Court should be supreme.

However, I would not reject the charter of fundamental rights out of hand. Let me explain why. There are rights that make no sense here, such as the right to petition the European Parliament. If we are leaving the European Union, why would we want to petition the European Parliament? On the right to free movement, to seek and have employment anywhere across the continent, that will be a matter for us to determine as a nation state when we leave the European Union. It makes no sense to include those rights in the charter—a point I made to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who agreed with me that we would need to adapt it.

The charter contains rights that draw on the European Court of Human Rights, so there is unnecessary duplication. Then there is an intermediate set of rights, which I think this House should look at. If we are to take back control, we should ask ourselves, “Is it right that some of the rights in the charter should be brought into our own system of law?” That might not be for this Bill, but it is something we should definitely consider.

[Antoinette Sandbach]

As we are in effect transposing the whole of EU law, with all the regulations that people have complained about for years, for example on bendy bananas, and the regulation of electrical items and consumer protections, does it not make sense to look at this third category of rights?

[Charlie Elphicke]

I agree with my hon. Friend. I think that it does make sense to look at this category of rights, whether in this Bill or more widely; it is something the House should consider.

Where is the balance to be struck on article 8, which relates to the protection of personal data? My view, for what it is worth, is that I should own my own data and decide what happens to it. It is my own data about me, so I should not have the Government or big businesses saying, “No, it belongs to us.” That is a debate that we should have as a country. This Bill is probably not the right mechanism for that debate, but we need to consider where the balance should lie.

Article 41 sets out the right to good administration. The Minister will say, “Well, of course we administer correctly; we are honourable men”—so are they all. But it is important that, as a matter of principle, every person

“has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies”

and that the right includes

“the right of every person to be heard, before any individual measure which would affect him or her adversely is taken”.

It seems to me that these rights are self-evident and true, and that we ought to ensure that they are written into our codes, from the point of view of executive action, if they are not already. They include

“the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality”

and

“the obligation of the administration to give reasons for its decisions.”

Those things, it seems to me, are self-evident and basic about what we are and should be about. These are rights that are not written into our system fully and properly, but I think that there is a strong case that they should be. I have of late had reason to ponder such matters in more depth, and the House should consider them to ensure that we execute such things properly in our system, our way of life and the values that we hold dear. The House should take back control to ensure that the rules of law and of executive action apply to each and every person in this nation and that we strike the right balance as we take on the great responsibility of restoring sovereignty to our sovereign Parliament.

[Mary Creagh]

It is a pleasure to follow the hon. Member for Dover (Charlie Elphicke). I voted against this Bill on Second Reading due to the powers that it puts into Ministers’ hands and the fact that it sidelines Parliament in many of these moments of incorporation. We have heard Government Members waxing lyrical about putting things back into the hands of this sovereign Parliament, but the Bill puts into the hands of Ministers the power to pass or strike out almost any law, and that point has been missed in this debate.

I am not a legal expert. I am not a barrister. I do not have a law degree. What I have is a semester spent studying Government law and policy at the London School of Economics as part of my master’s in European studies, and I have a massive book by Craig and de Búrca, which is still on the shelf in my office. As I was reading through the Bill, I noticed “Francovich” and that rang a little bell in the reptilian core of my brain. I thought to myself, “Ooh, that is one of those really important cases that I learned about 20 years ago,” and it turns out that that master’s has been the best money that I ever spent.

Francovich is one of the areas where the Government break their promise to cut and paste the whole body of EU law into UK law. Schedule 1 is their get-out-of-jail-free card and includes the things that they do not like and are not going to incorporate. There are a lot of words about why things will be difficult, why judges will be confused and why everyone will be getting themselves into a twist, but it is a rights grab and it must not be allowed to stand. We must not allow schedule 1, which is essentially a list of the ways in which the Government are curtailing legal rights and remedies that we have enjoyed as a result of our membership of the EU. Admittedly, however, some of those rights and remedies did not exist when we joined and have evolved over time through European Court of Justice jurisprudence and through the treaties.

For the last 25 years as EU citizens, we have enjoyed the right to state compensation when the Government fail to implement EU law correctly and an individual suffers a serious loss as a result—that goes back to my big green textbook. The rule was established after Andrea Francovich took his Government to court for failing to protect his rights at work. He worked for an electronics company in Italy, but he was paid only sporadically, and he was still owed pay when his employer went bust. The insolvency protection directive gives workers the right to be paid if their employer goes bust and they are owed wages, but Italy had failed to implement the directive, and the European Court of Justice ruled in 1991 that the Italian Government must make good the pay owed to Mr Francovich and, presumably, his colleagues. Since then, if an EU member state has failed to fulfil its obligations that come with membership of the EU, citizens can obtain compensation if they suffer damages as a result. I think the reason why that stuck in my mind was that the EU case law was relatively fresh 25 years ago.

How did the ruling apply in the UK? There is a particularly sad case that any one of us could have had as constituency MPs: the case of Ben Byrne. Since 1984, the second motor insurance directive has required member states to provide compensation arrangements for victims of untraced drivers and that the protection must be equivalent to that which is available for victims of insured drivers whose identities are known. In 1993 the then three-year-old Ben Byrne was hit by a car while crossing the road with his father. The driver sped off and was never found. Ben’s parents were not aware of his right to claim compensation until eight years after the accident.

We get such difficult, knotty cases in our constituency surgeries, with people being unaware of their rights and remedies under the law. Many of us will have held the hand of a constituent in terrible cases to ensure that they get justice.