European Union (Withdrawal) Bill

Debate between Charlie Elphicke and Antoinette Sandbach

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

[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.