European Union (Withdrawal) Bill

Geoffrey Cox Excerpts

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

[Joanna Cherry]

Dr O’Brien did indeed make that point, and I think that anyone interested in the detail of why removing the charter from domestic law would take away rights would be well advised to read her evidence.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

The number of cases in which the charter is cited— 248 in England and Wales—does not mean that it has had the slightest practical effect on the outcome of judgments, as the hon. and learned Lady knows quite well.

[Joanna Cherry]

I do know that, because I have sat through cases—so, too, has the hon. and learned Gentleman, I suspect—in which case law has been cited and it is hard to see its relevance. However, Dr O’Brien made her point advisedly, having taken care to prepare for the Select Committee hearing, so it is not an isolated point—as the hon. Member for Feltham and Heston (Seema Malhotra) has indicated, there was quite a bit more to her evidence. She touched in some detail on data protection issues, but I will leave it to other Members to discuss those, because the right hon. Member for East Ham (Stephen Timms) had a very interesting exchange with her on these issues and will no doubt address them later, because he has tabled an amendment.

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[Mr Cox]

The most familiar rejoinder of a judge when one cites the charter in the High Court is, “What does it add?” The most familiar response of counsel is, “Nothing.” The most familiar course of the judge thereafter is to ignore it completely, in 95% to 99% of cases.

[Joanna Cherry]

The hon. and learned Gentleman is no doubt commenting on the English jurisdiction, and I cannot comment on that because I have not appeared here, except in the UK Supreme Court. But certainly in Scotland it is sometimes referred to, and sometimes it is relevant and sometimes it is not, but that applies to all references made in cases. However, to counter his point, there are hard examples of where the charter has made a huge difference. The right hon. and learned Member for Beaconsfield referred earlier to the Benkharbouche case, which concerned the rights of an employee in an embassy in London, and another against the embassy of the Republic of Sudan. The individual complained of unlawful discrimination and a breach of working time regulations, and she would have been denied remedy had it not been for the charter.

One may forget Dr O’Brien’s evidence about the number of references if one wants to, but look at the hard examples of where the charter has made a difference. We have also heard about the tobacco packaging legislation. There are many examples relating to data protection, perhaps the most celebrated one being the litigation of the Secretary of State for Exiting the European Union.

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[Wera Hobhouse]

I thank the hon. Lady for making that valuable point. As someone who is not a legal expert, I believe this is about having a safeguard. We are keeping the law in the charter because it fills a gap that we would have otherwise. That is why we should retain the charter.

Let me give an example: the charter provides specific rights for children that are not replicated elsewhere in UK-wide human rights law. It requires that the child’s best interests must be a primary consideration in all actions relating to children; that children’s views may be expressed and shall be taken into consideration; and that children have a right to maintain a personal relationship with both their parents, unless this is contrary to their interests. The latter right was used in a case relating to two British children, whose father’s deportation was successfully challenged by focusing on the major negative impact on the children of loss of contact with a parent. Cases of this kind might become more common if Britain leaves the EU and EU nationals lose the automatic right to reside in the UK, with the consequent risk of family separation.

The charter also contains a prohibition on child labour which is not replicated elsewhere in UK human rights law. Another example of the charter providing greater protection is on disability rights. Disabled people would no longer be able to use the charter to support their right to independence, integration and participation in the community. This interpretive tool in the charter goes much further than the non-discrimination provisions in the Equality Act 2010. On healthcare, as we have heard, the charter was decisive in ensuring that bans on tobacco advertising were permitted. The list goes on, so why not retain the charter? Let me be a bit flippant here: I cannot help but wonder whether the Government are making this obvious omission from our statute books because some time ago the Prime Minister, when she was Home Secretary, had a ding-dong over the charter when she unsuccessfully tried to extradite Abu Qatada and this is a bit of late comeback.

To be serious again, what I worry about most in all the discussions about Brexit is that everything is being done in a big hurry because some eager Brexiteers would rather leave the EU tomorrow and not think about any consequences, even those that would mean real harm for this country. New clause 78, tabled by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake), would specifically provide an overarching domestic guarantee of non-discrimination by the state. It would be a domestic replacement for the safety net for equality rights currently provided by EU law. The new clause would serve a distinctive and different purpose from the rights protected by the Equality Act 2010, and I urge the Minister to consider it again. It would provide a guarantee that our laws must be non-discriminatory in their purpose and effect, along with a mechanism to challenge them if they were. Currently, that cannot be done under the Equality Act.

Providing greater protection of our human rights has nothing to do with losing sovereignty but everything to do with doing the right thing by our own people. I am fed up with being branded undemocratic or unpatriotic for merely pointing out that the Government will be failing their own people if the Bill passes unamended.

[Mr Cox]

What exactly would the new clause add to the rights that already exist under article 14 of the European convention on human rights?

[Wera Hobhouse]

The new clause has been promoted by the Equality and Human Rights Commission. I take it that the commission has done careful research into how it would provide an extra guarantee that is not currently provided. The hon. and learned Gentleman should look at it carefully to understand how it is meant to work, but it is an overarching tool that, as I understand it, we currently do not have. As I said before, as a non- legal person, for me the most important thing is the safe- guarding of our equality laws and the need to match what has been done so far at European and international level.

Brexit is increasingly nothing to do with what leave politicians promised to the people. I fear it is becoming an ideologically driven process to turn this country into some sort of deregulated free-for-all, in which the progress we have made over the past four decades to protect individuals from exploitation and discrimination, in tandem with our European neighbours, is sacrificed on the altar of sovereignty. The British people did not vote to give away their fundamental rights and protections. If Parliament does not amend the Bill, let nobody claim that this is the will of the people.

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As I have said, the Bill, as it stands, does not protect those environmental principles, and environmental protection after exit day will not be as strong and rigorous as it was before exit day. I seek the Minister’s reassurance that he intends to make sure that that does not happen.

[Mr Cox]

Broadly speaking, there have been two means of protecting human rights in international law. The first, which is generally followed by civil and continental law systems, has been to adopt charters of general rights with very broad statements of those rights and then to turn over to the courts the interpretation, in specific circumstances, of how those rights should be applied. The second, which is generally followed by common-law traditions, has been to proceed not by general statements of rights, but by specific statutory remedies in defined circumstances and by case law that defines the facts and allows the remedy to be extended by analogy with the facts of the particular case.

With due respect to Opposition Members, it seems to me as though some of them have made a mistake in equating the need for the incorporation of the charter with the protection of fundamental rights in this country. Article 7 of the universal declaration of human rights provided in 1948 that all subscribing nations to the United Nations should respect the principle of equality. But it has never been suggested that the United Kingdom, because it did not incorporate that principle into a general statement of an equality right, was not compliant with its obligation in international law, under the declaration and subsequently the covenant, to respect equality.

That is because there are two ways in which one can protect human rights. One can either adopt a general statement of rights and leave the protection of it to the courts, or one can adopt specific remedies in given circumstances that cumulatively and substantively protect those rights. Nobody has suggested that because the Soviet Union incorporated a right to equality into its constitution, equality rights were better protected there than they were in this country, which did not. Therefore, the absence of a general statement of rights, such as that in the charter—I do not say that there is not a function for such statements, but let us begin with first principles—is not to be equated with the protection of human rights. We have to look at the substantive effect of the cumulative common-law and statutory protections in our law.

That is why my right hon. Friend the Member for Forest of Dean (Mr Harper) suggested that the Government’s approach should not be to incorporate this charter of wide, broad and, quite frankly, vague general statements of rights and allow courts to take those statements, which are often rich with value judgments, and apply them to the facts. That is why the approach of my right hon. and learned Friends on the Front Bench is right and, I suggest, consistent with the common-law tradition of this country.

[Joanna Cherry]

I am wondering which country the hon. and learned Gentleman is talking about, because the common-law tradition melds with the civilian tradition in Scotland. I take nothing away from his erudite explanation of the background to all this, but the point that hon. Members seek to make is that, as is the case with the Human Rights Act, having the charter of fundamental rights as part of our law gives ordinary citizens and businesses the opportunity to go to court to enforce those rights, which this Bill will take away from them.

[Mr Cox]

No such charter existed with binding legal force before 2009, even in the European Union, but let us look at the circumstances. I contend that there are two ways of proceeding, of which the first is to have a broad and general statement of human rights—indeed, extended human rights under the charter—and to allow the courts simply to interpret them in given circumstances.

Some Government Members and—I think—some Opposition Members believe that the proper place to resolve moral dilemmas is not necessarily in a court. As someone once said, why should a majority of five or nine judges take precedence over a majority of the 650 Members of this House on questions of moral dilemma? Many of these—

[Joanna Cherry]

Will the hon. and learned Gentleman give way?

[Mr Cox]

No, I am not going to give way again. This will become a debate between lawyers, and that is not the point.

[Joanna Cherry]

It is actually on a moral point.

[Mr Cox]

No, no. [Interruption.]

[The Temporary Chair (David Hanson)]

Order. The hon. and learned Gentleman is not giving way.

[Mr Cox]

The point is that these broad and general rights are ripe with value judgments. Quite often, they are not appropriately dealt with by six or seven elderly white judges in a Supreme Court; they are better resolved on the Floor of this House and by a democratic vote in this Parliament.

[Sir William Cash]

Will my hon. and learned Friend give way?

[Mr Cox]

If my hon. Friend will forgive me for a moment, I need to develop an argument, because I want to move on.

Let us accept for the moment that there is a second and perfectly legitimate way, which international law accepts. International law does not require subscribing nations of the United Nations to adopt a Bill of Rights, and neither does the European Court of Human Rights—it never did require us to do so. It looked at the substantive and practical effect and how those rights were substantively protected in the jurisdiction. If we accept that for a moment, why should we not proceed by means of the Government’s proposed policy of examining specific statutory remedies and specific rules of common law, and considering whether the right is satisfactorily protected?

Some of us believe that the courts are not always the right place in which to deal with these matters. For example, article 20 of the charter of fundamental rights simply contains a right to equality before the law. That right has been enshrined in the common law in this country for centuries. Why should we have it in the charter of fundamental rights? Some say that there will be a problem between the two charters—

[Lady Hermon]

Will the hon. and learned Gentleman give way?

[Mr Cox]

I will give way to the hon. Lady, but not now.

Some say that there will be a collision. I am not sure that I buy the argument that there will be too much of a conflict or collision between the charter and convention. Quite frankly, my experience in the courts is that when both are relied on, the judge usually ignores the charter. As I said to the hon. and learned Member for Edinburgh South West (Joanna Cherry), the judge asks, “What does it add?” One may hum and haw, and try to come up with something, and the judge thereafter says, “Well, let’s concentrate on the Human Rights Act and the convention, shall we?”

The truth of the matter is that I do not deny that a modest—I repeat, a modest—extension in the courts has been effected in very recent years by the charter. The case of Benkharbouche is an example of an applicant being able to set aside part of the immunity from suit that the State Immunity Act 1978 conferred on a foreign embassy. Article 6 of the convention did not apply to the employment context, but article 47 of the charter, which guaranteed an effective remedy and a fair hearing in circumstances covered by the scope of European Union law, allowed that lady to argue that part of the statute should be set aside, and it was set aside.

Similarly, in the Vidal-Hall data protection case, the restriction under section 13 of the Data Protection Act 1998, which this House had imposed—it said that if people wanted to bring an action for damages under the Act, they had to show they had actually suffered damage—was set aside by the court on the basis that the data protection directive contemplated cases in which people suffered not merely damage, but distress. However, whether somebody should be able to sue the state or anybody else for damages because they have suffered distress or has to prove that they have suffered pecuniary distress is a matter for this House.

That is what I mean when I say that these matters are resolvable in numerous ways. Many Members on both sides of the House would disagree on the question of whether it was a legitimate public policy judgment that we should restrict an action for the breach of the Data Protection Acts to cases where actual damage was suffered or whether distress was enough. Why should it be resolved by a court? Why should it not be resolved by the House? That is part of the reason why Members on both sides of the House voted to leave the European Union in the first place. We believed that those kinds of decisions needed to be taken here, not by courts and not by the imposition of a law in which we did not have a majority say in this kind of question.

I want to develop what I hope is a coherent argument. I was addressing the question of whether or not there was a conflict between the human rights order—a disharmony imposed by the convention—and that which might be imposed by the incorporation of the charter. There could be real problems ahead. There will be cases in the broad and expansive definitions of European Union law, under which the charter applies when it falls within the scope of EU law, when a moral dilemma confronts a court that is asked to disapply an Act of Parliament. The supremacy principle is retained, as my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) observed, by the Act. In cases in which it is covered by the charter, and in which such a dilemma has arisen, the Act is set aside because of Benkharbouche and Vidal-Hall. If the charter is incorporated, its vague and general statement of rights will have binding force, so the Act will be set aside.

If I bring a case under the convention and I say that the Act should be set aside because I have suffered inhuman and degrading punishment, or some of the worst violations of human rights that could be conceived by a state, I cannot have the Act of Parliament set aside, which introduces an element of absurdity in our law. Apparently one can torture someone and not have the Act of Parliament set aside, but I cannot have my workplace rights infringed: in that case, I can have the whole caboose set aside—a whole Act of Parliament and statutory apparatus. It makes no sense, and it will bring our law into disrepute if we tolerate for long a situation in which a court faces a moral dilemma when a case is brought under a general statement of human rights. In some cases that are litigated, the court can set aside Acts of Parliament, but in other cases, it cannot do so, even when it involves the most serious violations of human rights imaginable.

Everyone accepts that the Bill legislates for an unsatisfactory situation—we can all agree on that. I tell my friends on the Conservative Benches with whom I have far more in common than that which divides us, even though we may have been on different sides of the debate on the question of belonging to the European Union, we can all agree on some fundamental things. It cannot be right to go on for long with a body of law in our overall legal order that permits and allows higher, special and better rights in certain circumstances. Incorporating the charter will exacerbate that problem. The protection of the rights that Opposition Members have rightly identified as worthy of protection can be accomplished by a different means. The right hon. Member for East Ham (Stephen Timms), who is not in his place, spoke so well on data protection. It is absolutely right that we need to make certain that our data protection laws are no less important that those we find on the continent, but we do not need to do that by incorporating a general statement of a right and leaving it to the courts to enforce.

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[Anna Soubry]

I thank my hon. and learned Friend for giving way. He makes a very passionate and highly informed speech, which explains so much about the basis of law and the merits of the common-law system. Surely the point he did not address, however, is this: the Bill enshrines EU law into domestic British law. Therefore it does not make sense not to incorporate the charter. That is the contradiction that concerns many.

[Mr Cox]

It does make sense, because all that does is restore us to a position pre 2009 in the European Union. The general principles will still apply. There is no inconsistency by allowing the general principles—subject to amendments, which I am not speaking on; I have some sympathy with the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield —but I am convinced that incorporating the charter would be wrong and unwise. As a matter of policy, I urge my right hon. and hon. Friends and Opposition Members not to vote for that.

[Brendan O'Hara (Argyll and Bute) (SNP)]

I rise to participate in this debate as something of a rarity: a non-lawyer. I will try to keep my comments within the allotted time of between 10 and 12 minutes.

I wish to follow the compelling and intelligent case made by the right hon. Member for East Ham (Stephen Timms), and I am delighted to speak in support of his amendment 151, which highlights, in particular, the consequences facing millions of British citizens and thousands of companies if the UK’s data protection legislation cannot be reconciled with EU law post Brexit. If clause 5 is passed unamended, and should the UK crash out of the EU on 29 March 2019 without a deal, I fear that the UK will find itself non-compliant with EU law and the charter of fundamental rights, and that therefore the framework that affords us the unencumbered free flow of data—not just within the EU, but with the safe nations with which the EU has reciprocal deals, including the United States—will immediately be under threat.

The consequences for the businesses and individuals who rely every day on that free flow of data across international boundaries—a free flow that needs to occur safely and without delay, cost or detriment—are unthinkable. As the Software Alliance said in its recent report,

“The benefits of cross-border data transfers are vital, not only for the technology sector but also for financial services, manufacturing, retail, healthcare, energy and most other sectors”.

The Data Protection Bill impact assessment, published last month, recognised the huge economic importance of the UK being able to guarantee effective unrestricted data flow and predicted that being at the forefront of data innovation could benefit the UK economy by up to £240 billion by 2020. Despite the warnings of businesses and their own impact assessment, however, the Government, in implementing clauses 5 and 6, seem determined to make the UK some kind of digital island, cut off from the rest of the global digital economy.

One would have thought, at a time of so many data breaches and cyber-attacks, that ongoing data co-operation with our European partners and others was not just desirable but essential post-Brexit. If creating a digital island is not the Government’s aim, I strongly suggest they make securing a workable compliant data protection deal with the EU one of their main priorities. It is not enough for them simply to assume that we will attain the status of adequacy by default—because we will have implemented general data protection regulations—or that, come what may, the minute we leave the EU our data protection laws will automatically be harmonised with the EU’s. That is simply not the case.

As we heard from the hon. Member for Nottingham East (Mr Leslie), the right hon. Member for East Ham and others, the European Court of Justice has already ruled, in both the Watson and Tele2 cases, that the implementing of a GDPR simply is not enough automatically to secure an adequacy by default agreement from the EU. The only avenue I can see for the Government, therefore, if they wish to achieve adequacy by default status, which they claim to desire, is to secure a deal with the EU that complies with European law before we leave. To do that, we would require a transitional period, during which we could negotiate a deal while remaining inside the single market and customs union and under the jurisdiction of the ECJ. That is one way for the Government to find time to negotiate the adequacy by default status. Of course, the other, and much more straightforward, option would be for the Government to commit to the UK remaining inside the single market and customs union and under the jurisdiction of the ECJ, given that no one in the UK ever voted to leave the single market or the customs union.

To be clear, the consequences of the UK crashing out of the EU without a deal would be catastrophic, particularly for businesses in the telecommunications and financial sectors, which are heavily reliant—almost entirely dependent—on the unrestricted free flow of data. The right hon. Member for East Ham detailed the importance of data to the UK economy. In the decade to 2015, the amount of cross-border data flow increased twenty-eightfold in the UK, and currently digital and data-intensive sectors of the economy account for 16% of UK output and 24% of our total exports. But as the clock ticks down to Brexit, I know that businesses that rely on the free flow of data are becoming increasingly concerned. They need to know now what is happening: they cannot plan for the future simply on the basis of a vague Government promise that somehow it will be all right on the night. I fear that, if they do not have guarantees about exactly what is happening well ahead of Brexit, they will vote with their feet and leave, like the European Medicines Agency, which announced last night that it was moving 900 high-tech, high-value jobs from London to Amsterdam.

Businesses cannot afford the risk of finding themselves outside the EU data protection area, and they cannot and will not wait until the last minute to find out what is happening. That is not commercially viable. Contracts would have to be rewritten and bills renegotiated, and things like that do not happen overnight. I fear that, if there is no agreement on an issue as fundamental as data protection, many large, high-net-worth companies which provide high-value jobs will begin to seek the stability that they need outside the United Kingdom.

As I said earlier, I seriously question whether maintaining a frictionless cross-border data flow is attracting enough of the Government’s attention during their Brexit negotiations. My alarm bells began ringing a number of weeks ago, when the Minister for Digital told the House that the Government were seeking “something akin” to an adequacy agreement. I had absolutely no idea what he meant then, and I am no closer to understanding now. “Something akin” to an adequacy agreement simply does not exist. An adequacy agreement is a formal legal position. It cannot be bent, moulded, or used as a quick fix to get a country, or a Minister, out of a sticky situation. The leading data protection lawyer Rosemary Jay said of adequacy agreements that the EU

“has to go through a legislative process. It is not simply within its gift to do it in some informal way”.

EU law is very clear: an adequacy decision can only be given to a “third country”— a country that is outside the EU and the European economic area—to allow it to operate securely and freely within the framework of the general data protection regulation, and an adequacy decision can only be given to a third country that meets the European Union’s high standard of data protection and whose domestic legislation is deemed compatible with the European Union’s charter of fundamental rights. The most obvious difficulty is that an adequacy decision is designed for third countries. The UK is not—yet—a third country, and it will not be a third country until the very end of the Brexit process.

There is a whole lot more to be considered. I cannot see how, without negotiating and securing a deal before leaving the EU, the UK can qualify for any sort of adequacy agreement, whether by default or otherwise. Even if the Prime Minister does secure a transitional period and is given time to sort out the UK’s adequacy problems, there is still no guarantee that adequacy by default will be achieved, because before granting an adequacy decision to a third country, the European Commission is obliged to consider a variety of issues such as the rule of law, respect for human rights and legislation on national security, public security and criminal law. That means that any deal that we reach with the EU will have to require at least a complete reworking—and, at best, a complete ditching—of the UK’s Investigatory Powers Act. In its present form, the Act leaves UK law incompatible with the charter of fundamental rights, which, as we have often heard, includes a chapter on the fundamental right to data protection.

On that basis alone, I am almost certain that the Act, which has already been accused of violating EU fundamental rights, will seriously call into question the UK’s ability to receive a positive adequacy decision. Eduardo Ustaran, a respected and internationally recognised expert on data protection, has said:

“What the UK needs to do is convince the Commission—and perhaps one day the European Court of Justice—that the Investigatory Powers Act is compatible with fundamental rights. That’s a tall order”.

The Government are understandably desperate to secure an adequacy decision by default or otherwise, but the harsh reality is that, at the very least, a lengthy and challenging legal process will almost certainly have to be undertaken before that can happen. That is why it is essential that the Government first secure the transitional period to keep the UK within the single market, the customs union and the jurisdiction of the European Court of Justice. We have to redraft the Investigatory Powers Act to make it comply with the charter of fundamental rights—if that is even possible, given the current form of the Act. Should that not happen, we will crash out of the European Union without a data protection deal, with all the devastating consequences that that would have for individuals and businesses.

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[The Solicitor General]

As the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab) has mentioned, the Government will, on 5 December, publish their full analysis of the sources of the rights that we have been talking about. I remind my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that the underlying principles of EU law from which the charter has been developed will be part of the body of law that we bring down to the UK, and will be able to be relied upon.

[Mr Cox]

Is not the answer to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that the rights might not be replicated in our existing law but the protections will be? The fact that a general statement of a right is not replicated verbatim in our law does not mean that those rights are not otherwise protected adequately and fully by our laws.

[The Solicitor General]

I am grateful to my hon. and learned Friend, but I feel as though I am about to become a proxy in a debate between him and my right hon. and learned Friend the Member for Rushcliffe, so I will now develop my point.