European Union (Withdrawal) Bill

Lord Faulks Excerpts

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

[Lord Goldsmith]

I apologise to both noble Lords. The proposition is that the charter does no more than codify existing rights and principles, so it is not necessary to bring it in. It has been said, for example, by the very distinguished and independent Bingham Centre for the Rule of Law that that proposition is demonstrably not correct. It sets that out in a detailed report that I commend to noble Lords. An opinion of Queen’s Counsel obtained by the Equalities and Human Rights Commission concludes that in fact this would lead to a significant weakening of human rights protection in the United Kingdom. Against those independent statements, it is no wonder that many NGOs and many members of civil society are deeply troubled about the exclusion of the charter. It is not just civil society that is concerned about that, as the noble Baroness, Lady Ludford, noted in the last debate, but industries such as the tech industry.

One can find examples of rights that are not protected in the report, which I also commend to noble Lords, by the Joint Committee on Human Rights. In its right-by-right analysis it identifies which rights are already included in our law and which are not. For example, on the very first item in the charter—Article 1 on the protection of human dignity, which many people would regard as the most fundamental human right and the basis of all others—the Government’s right-by-right analysis gives two reasons for saying that that would be continued: first, an unincorporated treaty, the Universal Declaration of Human Rights, which does not have enforceable effect in this country at all; and, secondly, as a general principle of EU law—but, as noble Lords will know, this Bill seeks to prevent general principles of EU law being given effect or creating any enforceable rights. That is an aspect that we will have to come back to later in the debates on the Bill.

[Lord Faulks (Con)]

The noble and learned Lord identifies the fact that certain rights are no longer protected adequately because the charter contains rights that are not there in the European convention or, presumably, otherwise provided for by law. Could he tell the House why the Human Rights Act was not expanded to take into account the protection of these laws? At no time from 1998 to the time when the Labour Government lost power was there any attempt to include these rights that he now says are a central part of our law.

[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.

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[Lord Faulks]

Is the noble and learned Lord telling the House that these principles are going to be actionable on their own?

[Lord Goldsmith]

The noble Lord knows that that is not the position in relation to the principles: they are guidance and aspirational. I am not spending a lot of time on them, although some of the NGOs have. I will give one example. There was a case in which the EU’s proposed legislation in relation to plain packaging of tobacco products was challenged in the courts on the grounds that it contravened freedom of expression. One of the things that the court looking at that noted was that the charter provided for a high degree of public protection in terms of health. I hope that all noble Lords agree with that sentiment, whether or not they agree with the result of the case. That is an example of where the principles come into effect.

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[Viscount Hailsham]

Yes, I know that is what he has said but I ask noble Lords to think about the impact on those who will lose their assets. That is the point I am making. I agree with my noble friend but my point is: what about the position of those who lose their assets?

[Lord Faulks]

My Lords—

[Viscount Hailsham]

I am just going to finish this point and then I will give way. It is at that point that Article 17 of the charter comes into play. As the Committee will know, Article 17 provides that property is to be protected and, furthermore, that rights of compensation are to be paid. This is the protection that this House would be very chary about giving away. I give way to my noble friend.

[Lord Faulks]

My noble friend will know that Article 1 of the first protocol of the European convention does precisely the same thing.

[Viscount Hailsham]

So there is an overlap, and the question is one of remedies. As my noble friend will know, the remedies under the charter are probably more effective than the remedies under the convention, and that is the point that the noble and learned Lord was making.

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[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.

[Baroness Kennedy of The Shaws]

My Lords—

[Baroness Kennedy of The Shaws]

I stood up before the noble Lord, Lord Faulks, sat down as I knew he was coming to an end. He mentioned, and I accept entirely, his position that the Government may have excluded the Charter of Fundamental Rights because of uncertainty. But for many people it is an indicator of something else: that Conservative Party manifestos over a number of years have promised that the Human Rights Act would be removed. On many occasions, we have heard leading Conservatives say that we should remove ourselves from the European Convention on Human Rights, too. The absence of the Charter of Fundamental Rights from the Bill suggests to many that this is part of a journey taking us out of any international arrangements dealing with the protection of human rights, and that that is the real purpose.

[Lord Faulks]

The Government’s position has been made quite clear: they have no intention of repealing the Human Rights Act. It is perfectly true that the previous Government said that they would consult on the question and bring in a British Bill of Rights, which would not mean departing from the European convention. Of course, I understand that there are those who are suspicious of this Government’s motives—I do not speak for the Government—but if a Government were hell-bent on getting rid of human rights, they would of course be able to get rid of the charter as well. I do not accept the sinister interpretation of the noble Baroness. The intention is simply to achieve clarity; that is what the Bill is about.

[Baroness Lister of Burtersett (Lab)]

The Conservative manifesto said:

“We will not repeal … the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European Convention on Human Rights for the duration of the next parliament”.


When the Minister replies, can he give us an assurance about the long-term commitment of the Conservative Party to the Human Rights Act?

[Lord Faulks]

No Parliament can bind its successor; one would expect every Government to consider human rights as an ongoing process, and how best to protect them.

[Lord Wallace of Tankerness]

My Lords, I will speak to Amendment 63A, which is in my name and has already been spoken to with great passion by the noble Lord, Lord Cashman. He gave an excellent antidote to a debate that has otherwise been an important but nevertheless cerebral examination of the legal position of the European Charter of Fundamental Rights.