European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, we need a Bill to maintain within law the protections and the continuity that we have. The decision to leave the European Union having been made—whatever one thinks of it—the consequence will be that many laws on which we presently depend will fall away unless steps are taken to keep them in place. But that does not mean just any Bill. This legislation is so serious and so important—for ourselves, for our citizens, for our children—that we have to get it right, and getting a complicated and important piece of legislation right is one of the things that this House does particularly well. We need to make it fit for purpose, as my noble friend Lady Smith of Basildon said, or—in the rather more graphic terms of the noble Baroness, Lady Boothroyd—copper-bottomed, ironclad and storm-proof. She is absolutely right, because when the Bill becomes an Act it will have to withstand many storms from citizens hoping that it still delivers protections for their rights, and we must not disappoint them; and from lawyers, and I speak as one, hoping to thwart them or to provide even more.

I have never before heard a debate in which so many Lords from all parties and from none have criticised a Bill for its technical deficiencies, its assault on our constitution, its assault on parliamentary sovereignty, its extraordinary switch of power to Ministers, the jeopardy it creates to our devolution settlement and the legal uncertainty it creates, not to mention the risk it poses to the peace in Ireland and the Good Friday agreement. Whatever the differences on other matters—leave or remain, a second referendum or not—there seems to be a wide measure of agreement that the Bill, as it stands, does not do what is required to make it fit for purpose. Wanting to make it fit for purpose is not putting a spanner in the works. It is not frustrating the Bill or the people’s will. The noble Baroness, Lady Altmann, was right to make that point. So there will be many amendments that we will have to consider, such as dropping the word “appropriate” in many places for something much tighter. I hope the Government heard the powerful challenge to it from the noble Lord, Lord Wilson of Dinton—who as a former Cabinet Secretary and, indeed, Permanent Secretary of the most legislating department of all, the Home Office, knows a thing or two about legislation—and his comments on what Ministers might do and delegated powers. Indeed, I hope they heard the comments of the noble Lord, Lord Bichard, with his experience in local and central government.

It has been a privilege to hear so many excellent speeches and outstanding contributions, such as those from the noble Lords, Lord Higgins and Lord Patten of Barnes, and the noble Baroness, Lady Boothroyd, not to mention those from this side, such as the noble Lords, Lord Liddle and Lord Judd—as well as some unforgettable images, such as the gangplank into thin air of the noble Lord, Lord Bridges; the nervous maiden aunts of the noble Lord, Lord Lisvane, settling down to a Quentin Tarantino movie; or the rather worrying image conjured up by the noble Lord, Lord Cormack, of somebody—and I am not quite sure how many people—getting into a bath to sing. But to make this Bill fit for purpose requires in my mind at least three objectives: to make sure there is legal certainty after the Bill is passed; to ensure that protections for the people, workers and women of this country, and everyone else, are not diminished—I pay tribute here to my noble friend Lady Crawley for rightly pointing out how European law has protected women; and, thirdly, to do so in a way which maintains the critical elements of our constitution, including devolution and, above all, the sovereignty of Parliament.

The damage this Bill will do to our constitution, if not significantly amended, has been powerfully described by a number of noble Lords and in the brilliant report of our Constitution Committee. They are right to say that this Bill, as it stands, is constitutionally unacceptable, including the largest transfer of power, as the noble Lord, Lord Lisvane, said. They are right to say that it risks undermining legal certainty in a number of ways.

I want to say, in the short time I have, a word or two about the European Charter of Fundamental Rights. I declare an interest in that I was, as many Members of the House will know, the representative of the Prime Minister—in fact, the United Kingdom Government representative—in the negotiation of the charter, so I had a very close involvement in its drafting. A number of other Members of your Lordships’ House were also involved. The noble Lord, Lord Bowness, was a representative of the House with my noble friend Lady Howells of St Davids as his alternate. The noble Lord, Lord Kirkhope, was a Member of the European Parliament delegation, while the noble Lord, Lord Chidgey, was at the time an alternate Member representing the House of Commons. I mention those noble Lords not to share with them any of the criticisms that have been made of the charter, but to illustrate something that is not often recalled about it. It was drawn up by a wide body representing Parliaments, the European Union institutions and Governments.

I need also to declare that I have spoken and written many times on the charter because of my close involvement with its drafting. I have no doubt that during the coming debates, some of what I said or have written will be pushed back to me, because it is the case that we in the United Kingdom were anxious to avoid confusion with other rights, in particular the European Convention on Human Rights, and so emphasised the limited role of the charter. But that was then and a lot has happened since. The charter has been relied on in national and supranational courts, it has been talked about a great deal, and in Committee we will have to look at some of this. We need to remember that the rights in the charter do not derive only from the ECHR, as is sometimes thought, but from a number of sources, including EU law as well as general principles of law which have no other individual legislative base. It also adds important remedies which do not otherwise exist.

That brings me to a point made by a number of noble Lords, including the noble Baroness, Lady D’Souza, my noble friends Lady Whitaker and Lady Blackstone, and by the noble Lord, Lord Warner. Why are the Government so determined that the one element of protection that will not be kept in place after the Bill has been passed is the Charter of Fundamental Rights? They say that there is no need because all the rights are protected in any event. If that is so, what is the harm in keeping it in place? If it is not the case and removing the charter will come, as many people believe, to diminish the protections they currently have, that would be a bad turn. In fact there are a number of good reasons why we need to keep the charter—reasons enumerated by, for example, the Joint Committee on Human Rights in the commentary in its report, Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis. I respectfully commend that to noble Lords. Six powerful reasons are given why we need to keep the charter.

According to the Guardian, one of the new Brexit Ministers, Suella Fernandes, has said that exiting the EU Charter of Fundamental Rights would “avoid” extra protections. If that is what is happening, that is not maintaining the protections which currently exist in this country. Even if it were right that the protections add nothing, why remove them? It will mean that the rights in the charter from which we and our fellow citizens should benefit will be less accessible and less visible. That is because making rights visible and accessible was one of the key purposes of the charter. It would be mean-spirited to remove it. To make a change in this Bill to reduce the visibility and accessibility of rights, even if eventually they can all be found somewhere else is—I say it again—mean-spirited. Having and celebrating rights, not hiding them but being proud of them, is the mark of a good, decent culture. That is the sort of culture and country in which I want my children and grandchildren to grow up.