European Union (Withdrawal) Bill

Lord Cashman Excerpts

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

[Lord Cashman (Lab)]

My Lords, I speak as a co-signatory to Amendment 63A, which is also in the name of the noble and learned Lord, Lord Wallace of Tankerness. I will be very brief, especially in a room full, it seems, of Law Lords and lawyers. I come to this in perhaps a very different way from others. As a 67 year-old man, I have spent most of my life not having equality before the law or the equal protection of the law; that is, as a gay man. Most of my rights—the equality I now enjoy—have been achieved largely by dragging legislative changes forcefully from Governments who did not want to give them to us or to many other misrepresented and defamed minorities. When it comes to human rights and civil liberties, you can never have enough belt and braces. Therefore, I do not understand why the exception to the carryover of EU law is solely in relation to the European Charter of Fundamental Rights and the general principles.

I promised to be brief and brief I will be. Tonight has illustrated to me more than any arguments that have come from a swathe of NGOs, such as the Bar Council, the Law Society, the Royal College of Nursing and others, that we cannot bring forward a change of such magnitude as this in a Bill that is supposed to retain all the EU law and then amend it afterwards. If we are to change the European Charter of Fundamental Rights, it should be done with full public scrutiny by both Houses, through primary legislation and the full engagement of civil society.

Let me finish on this. I talked about the rights that I and others have achieved that have had to be dragged. I want people to have easier access to the courts. If the Charter of Fundamental Rights in some way, through one clause or another, achieves that, I will go to wherever I go when I lay my head finally with great peace and rest. Why? Because the European Union was born out of the ashes of the Second World War—the ashes from crematoria that were dotted across Europe because people were taken there because of their difference, their perceived difference. Homosexuals were worked to death in concentration camps alongside trade unionists and many others. Yes, it is emotional but when you are denied and deprived of your human rights, it strikes at the very core of your being. When you are not given the equality that others have under the law, it strikes at your very existence.

These rights have been achieved and enumerated not only in conventions. Sadly, I have heard laughter rained upon people who have tried to defend the charter and the concept of human rights tonight, and I do not take that lightly. These rights that have been achieved have often been forced back against those who have sought them. They have been achieved, often, against the will of Governments and across the sacrifices of generations. Do not put them aside lightly. I urge noble Lords to support this group of amendments. If we are to change anything, let us do it through primary legislation or, at the very least, in the same way that we amend other retained EU law.

[Lord Faulks]

My Lords, I am sure that the Committee will be greatly moved by what the noble Lord, Lord Cashman, has said. Everyone is concerned to protect human rights but we must not fall into the trap of saying rights are good and therefore, more rights are better.

The role of the Charter of Fundamental Rights in our law has been an uncertain one. The noble and learned Lord, Lord Goldsmith, has had a great deal to do with it and knows a great deal about its creation; he played a part in its drafting. He got his retaliation in first at Second Reading and today, knowing that it was going to be pointed out to him that he was not initially an enthusiast for the charter because of the apparent disorder it might create in the rights architecture of our law. There is nothing wrong with changing your mind. It is quite a fashionable course for the party opposite to take at the moment. My difficulty is not with the change of mind but the fact that I agreed with his original stance, which was that adding the charter, which was designed for an entirely different purpose, ran the risk of undermining the clarity and cogency of our law.

I have some experience of the way rights are played in court. I was part of the Commission on a Bill of Rights, together with the noble Baroness, Lady Kennedy, who is in her place. I was also a Minister with responsibility for human rights. I have considerable experience over the past 20 years, following the incorporation of the European Convention on Human Rights by the Human Rights Act, of acting for public authorities which have been sued for alleged violations of those rights. Rights are very difficult to interpret, whether they come from a declaration, a charter or a convention. Inevitably they tend to be expressed in general terms and leave a great deal to individual judges to interpret and try to make practical sense of.

Most of the rights contained in the charter—obviously, some of them are inappropriate—are not controversial in what they seek to protect. What is far more controversial is how these rights should be interpreted. My right may be in conflict with your right. The protection of my right may have to be sacrificed or modified by the need to protect others’ rights or the powers that the state may inevitably have which affect or modify those rights. Of course we need to protect children, the disabled and the vulnerable in society, as a number of noble Lords have pointed out. Most of what we do in Parliament is concerned with the definition of circumstances in which individuals’ rights should be protected. A number of noble Lords have identified the right to dignity as being important since it is not reflected precisely in the European convention. We can all agree that it is important that citizens are treated with dignity but how does one translate that into anything meaningful in terms of the courts providing remedies?

The difficulty is that rights are now regarded as trumps and if we are to retain the charter, as seems to be the purport of the amendments in this group, we will have the rather strange situation of existing domestic law, whether it comes from the Human Rights Act or elsewhere, being supplemented by the charter, which will have a particular status. As the Government have made clear, the charter was never supposed to be a source of rights per se but a reflection of the rights that are generally protected by the European Court of Justice. It would be peculiar for our courts to continue to rely on the charter, which was designed to apply to EU institutions in interpreting the scope of EU law, after we have actually left the European Union.

The Advocate-General has occasionally made remarks about the charter. At its highest it has been described as “soft law”. If we need to protect or further protect rights, is that not a matter for Parliament or even judges interpreting the common law? Are we really so impotent as a Parliament that we have to rely on the relatively recent EU charter to provide such protection? Some of the amendments seek to turn soft law into hard law with application after we have left. This Bill is surely to provide clarity and coherence in the law after we have left the EU. Retaining the charter will do precisely the opposite.

I regret that I do not agree with various observations made at Second Reading that the Human Rights Act provides only for declarations of incompatibility. It does in fact provide damages for violations of the convention. I suspect the reason the charter has attracted such vigorous support is the rather egregious way it has been singled out for attention in the Bill. The reason it has been so singled out is the uncertainty of its application by the courts so far, and the Government’s desire to be absolutely clear that in the difficult task of interpreting the law that the judges will face, the charter can safely be ignored.

My amendment, which I come to in conclusion, is an attempt to provide some clarity as to what role, if any, the charter may have in the future. In so far as the charter is part of retained law—I appreciate that the definition of retained law is also the subject of debate—there seems no harm in it having some continued existence, in so far as it is necessary for the interpretation of that retained law; hence my amendment. What I find wholly unconvincing is the argument that it should somehow remain, as a non-native species, providing a free-standing source of rights—as in the Goldsmith amendment—or that it should be grafted on, subject to amendments to the Human Rights Act, as in the Wigley amendment. Who will benefit if the charter remains part of our domestic law after exit day? I fear it will not be those whom we rightly wish to protect; it will be the lawyers, and surely we do not want that.