European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

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

[Lord Goldsmith]

They were, because the charter provided for them. The Human Rights Act incorporated one set of provisions only, the European Convention on Human Rights, which goes back to just after the Second World War and which provides the classic political and civil rights. The other rights that we find in the charter, which is a much longer document and refers to socioeconomic rights, were not included in the Human Rights Act because they were not included in the European Convention on Human Rights.

The right-by-right analysis demonstrates which of these rights are not included. Given that the Government’s objective, as stated by the Prime Minister, is to ensure that the protections for people in this country are the same the day after exit as the day before, I respectfully suggest that it is not for me to identify why that is not right; it is for the Government to demonstrate why it is. When we have substantial independent bodies such as the Bingham Centre and independent opinions from QCs demonstrating that actually it is not the case that the protections remain the same, the Government need to explain. I shall come on to that further.

Obviously there are examples of rights in the charter that reflect precisely other rights that we have within our law. In particular, there are a number of rights in the charter that are explicitly based on the European Convention on Human Rights; they are the same. Indeed, during the negotiations I went to some pains to try to ensure that they were phrased in the same way so as to prevent lawyers from saying, “It’s written differently so it must mean something different”. However, those are not the only rights that are there. As I noted at Second Reading, the charter is based not just on the European Convention on Human Rights but on principles of EU law and on principles that are commonly accepted by the member states, and those are in a different position from the ECHR rights.

[Lord Brown of Eaton-under-Heywood (CB)]

Just take one of the rights that is precisely mirrored in the convention. Is it suggested that henceforth, the wise complainant who faces primary legislation here which is incompatible with that right should therefore sue under both the charter and the convention because, lo and behold, under the convention, despite the constitutional arrangement whereby the court’s powers are limited to a declaration of incompatibility, he can disapply the primary legislation? Is that to be the consequence: that in a case where it matches, the convention trumps the constitutional settlement we arrived at, to which the noble Baroness, Lady Deech, referred?

[Lord Goldsmith]

That will depend on the shape of the Bill when it is completed—in particular, what is said about the provisions which deal with primacy of EU law—but at the moment, as the noble and learned Lord will know well from the cases he sat on, people have been bringing cases by reference to both the charter and the convention. One reason for that is that the protection under the charter is more powerful. In future, if people want protection of human rights, they will want the more powerful protection, and if that remains available after the Bill is enacted, they will look to it.

--- Later in debate ---

There is a further problem—

[Lord Brown of Eaton-under-Heywood]

I promise that I will not intervene again—I loathe intervening. But does the noble and learned Lord agree, although he proposes the domestication of the charter, it will still be necessary in future to decide what is within the ambit of what used to be EU law, because that is where the operation of the charter is presently confined—or does he suggest that now it opens up and encompasses all UK law, so that it is a wider application than it was originally? Are we going to have to go again through the impossible exercise, notoriously uncertain in application, of having to decide what is specifically and directly within the ambit of EU law in future as well?

[Lord Goldsmith]

I am grateful to the noble and learned Lord and I know that this is a point that troubles him, but he should bear in mind that what we have in Clauses 2, 3 and 4 of the Bill are provisions to bring specific aspects of EU derived legislation and EU direct effect legislation into UK law. That is the Union law that will continue, and that is what is defined as retained EU law—and it is to that retained EU law that the charter will continue to have effect under the scheme that I advocate to your Lordships, not to anything else or more broadly UK law.

[Lord Brown of Eaton-under-Heywood]

So the right to dignity would exist in the context of EU law, but not otherwise? Is that really how it is intended to work? Can the noble and learned Lord give an illustration of a case that will succeed under the right to human dignity in future—I mean, there has not ever been one in the past that has succeeded under that—when otherwise it would fail?

[Lord Goldsmith]

The noble and learned Lord knows that I took Article 1 as an example only because it is the very first article in the charter. I have respectfully invited noble Lords to look at the Joint Committee on Human Rights report, where the committee goes through each of the articles and through what the Government have said in relation to them, and identifies where they find place already in existing, enforceable UK law, and where they do not. It is where they do not that we are concerned with, and where they do not that there will be the very gap that the Prime Minister has said should not exist.

There is the further problem that, even if the rights survive, they will survive without the enhanced status and protection that they currently have. They have an enhanced status at the moment because of the 1972 Act and because of EU membership, but from the date of this Act they will only survive in a delegated form and be amendable by delegated legislation. They are not protected from being amended or removed by delegated legislation.

Compare the position in relation to the ECHR and the Human Rights Act. The Bill says in three places—in Clauses 7(7)(e), 8(3)(d) and 9(3)(d)—that the Human Rights Act is protected from amendment or revocation. The classic civil and political rights, but no more, which are, rightly, protected by the HRA, are protected from being amended other than by primary legislation to which this House and the other place have specifically agreed after proper scrutiny. However, none of the rights underlying the charter will be protected in that way, unless they find themselves within the ECHR, which is only some of them. That is unacceptable for many people.

--- Later in debate ---

[Lord Pannick]

My Lords, may I respond to some of the objections that have been raised to the points made by the noble and learned Lord, Lord Goldsmith, with whose speech I agree entirely?

Many of the objections—those raised by the noble Lord, Lord Lamont, are typical—are to the content of the charter or to its implications. The Committee should appreciate that that is not the Government’s position. The Government’s position is not that they seek to exclude the charter because its contents or implications are objectionable. Their position is very clear indeed. If noble Lords read the debates in the House of Commons or look at the report of the Constitution Committee, they will see that the Government’s position is simply that we do not need the charter in this Bill because its contents and implications are already contained in the retained EU law that is being read across through this Bill. So many of the objections that the Committee is listening to are simply beside the point: they are not the Government’s objection to the charter. The Government’s objection to the charter—it is unnecessary because its contents are already part of retained EU law—is, I am afraid, simply unsustainable. I will not take up time on this, because the hour is late, but if any noble Lords are doubtful about it, I simply suggest they read the helpful opinion by Jason Coppel QC, in which he clearly sets out the equality and human rights position. That is the first point.

Turning to the second point, I am always reluctant to disagree with my noble friend Lady Deech, because she taught me law at Oxford, but I have to disagree with her on this occasion. Her objection, as she explained it, and I hope I do not misrepresent her, is that she is concerned that the charter will enable the courts to overturn legislation enacted by Parliament—she is nodding. But I am sure she appreciates that that is inherent in this Bill. The whole point of the Bill is to read across as retained EU law the content of existing EU law that is applicable to this country and to give it—see Clause 5—supremacy. Supremacy means that it takes priority, as in the Factortame case, over anything enacted by Parliament which is inconsistent. So the suggestion that we must oppose the charter because it gives courts that power is simply inconsistent with what the Bill does.

Turning to the third objection, my noble and learned friend Lord Brown of Eaton-under-Heywood was concerned about whether the inclusion of the charter would, in some way, give a power that expands the role of the charter further than under EU law. My simple answer to that is no, of course it does not. The charter is being read across only because it is part of existing EU law, and it comes across as retained EU law. It will not have any greater force than it already has as part of EU law.

[Lord Brown of Eaton-under-Heywood]

In those circumstances, does my noble friend agree that the result of that is that we are henceforth, instead of treating retained EU law as part of domestic law—having discarded the separation and shed the notion that it is a distinct body of law—still going to have to wrestle with all the difficulties inherent in distinguishing operations or actions pursued in the ambit of EU law from those that are not? Will that problem continue into the distant future?

[Lord Pannick]

My answer is very simple: yes, of course. The whole point of the Bill is to read across the EU law which currently applies to this country and for it to continue to apply. That is the Government’s objective. It is their objective because they—very sensibly, in my view—wish to ensure legal certainty and clarity on exit day. That is exactly the legal position. It is not my idea; it is the Government’s intention in this Bill.

As to all the concerns about what the charter might or might not do, one should bear in mind that the charter has been applicable in the courts of this country for many years. No one has suggested that there is some case or principle which is so objectionable that we need now to make an exception for the charter, when the Government’s intention in the Bill is to read across all retained EU law to ensure a functioning statute book that preserves the legal position and ensures clarity, certainty and continuity. That is what this Bill is about.