European Union (Withdrawal) Bill

Lord Judge Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

The authority of the courts is extremely important, but in our democracy it is limited, and limited for the extremely good reason that the ultimate control in a democracy should be in the hands of the elected representatives. However much we think this charter may have contributed, it can make only a very limited contribution and I am very interested to know, for example, how the noble Lord, Lord Pannick, will deal with Article 1. It applies only when you are implementing European legislation. What happens the rest of the time to your human dignity? This is the sort of problem the charter raises and, so far as I know, there is no solution.

[Lord Judge (CB)]

I very rarely disagree with the noble Lord, Lord Pannick, and there is a very good reason for that. On every occasion when I have had to give a judgment in a case which he has argued, I have found against him, and on every occasion when he has appealed my judgment he has succeeded. That is more or less accurate.

The issues that arise here can be very briefly summarised by reference to Article 50. It is not a point I would have made if the noble Baroness, Lady Lawrence, had been sitting in her place. In 2003, the previous Labour Government brought forward a provision that did away with the prohibition on a second trial—the ancient common law principle of double jeopardy. Faced with the prospect of new and compelling evidence, for example by further research through DNA and the like, with which we are familiar, the Act was passed. Article 50 prohibits that provision that was made in primary legislation. The result would have been that two men now serving imprisonment following conviction for murder of that innocent boy would never have been prosecuted to conviction.

--- Later in debate ---

[Lord Goldsmith]

It is always good to have a second argument when you are in front of the noble and learned Lord, Lord Judge.

[Lord Judge]

Perhaps, then, we had better find out what “the sovereignty of Parliament” means.

[Lord Goldsmith]

I come back to the central point I want to make. The Government made it clear and promised that rights would remain the same on exit day, but they could then be subject to change through the processes agreed and determined by this Parliament. Of all EU laws, the charter alone is being excluded. That drives one to question why that should be. Is it an ideological reason? Is it not wanting to see something that has “EU” attached to it? Or is it—which will be even more sinister and would worry me enormously—that there is an unhappiness and suspicion about fundamental rights? If there is any element at all that what lies behind this is a suspicion about fundamental rights and a suspicion that people should not be able to exercise those rights, that would be deeply unsatisfactory and a very good reason for not accepting the Government’s exclusion of this.