European Union (Withdrawal) Bill

Debate between Lord Lamont of Lerwick and Lord Goldsmith

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

[Lord Goldsmith (Lab)]

My Lords, we now come to the first group of amendments that deals with the exclusion from the Bill of the European Charter of Fundamental Rights. A number of amendments relate to the exclusion of the charter and to its specific provisions, so this may be a convenient place to debate the general principle of what the Government are proposing and the issues to which that gives rise. I shall therefore speak also to Amendments 14, 20, 25 and 34. Amendments 46, 47, 333 and 347 are consequential and I apprehend that there will be no need to say anything more about them.

The starting point for these amendments is the Government’s decision to exclude the European Charter of Fundamental Rights from the carryover into domestic law of existing EU law that the Bill is otherwise designed to achieve. As noble Lords know, and as the Government have been at pains to point out, the purpose of the Bill is to maintain legal continuity, certainty and stability for businesses and individuals by incorporating EU law as it stands into UK law. As the Prime Minister said in her foreword to the White Paper, the purpose is to ensure that:

“The same rules and laws will apply on the day after exit as on the day before”.


The White Paper goes on to explain that it will then be for democratically elected representatives in the UK, in this Parliament and the devolved Administrations, to decide whether to change that law after full and proper scrutiny and debate. This decision to bring EU law into UK law at the moment of exit is an essential part of the plan to provide clarity and is necessary, it is said by the Government, to bolster confidence and planning as the Brexit process comes into effect. The noble Baroness the Lord Privy Seal said at Second Reading that this is,

“about ensuring that people’s rights are maintained. It is vital to a smooth and orderly exit from the EU”.—[Official Report, 30/1/18; col. 1374.]

However, there is one glaring and deeply troubling exception to the proposal to bring EU law into domestic law so that it is the same the day after exit as it was the day before: the exclusion of the charter, in its entirety, from this exercise.

In another place, the Solicitor-General described the exercise as downloading EU law into domestic law, but what is not being downloaded is the charter. In another place, Sir Keir Starmer noted that although thousands of provisions of EU law are being converted into domestic law, and may have to be modified in some sense after that exercise, only one provision in the thousands on thousands of provisions of EU law is singled out for extinction, and that is the charter. That gives rise to a conundrum.

[Lord Lamont of Lerwick]

Is the noble and learned Lord going to come on to explaining why it was, when he was Attorney-General and working with Tony Blair, he worked so hard to try to get the charter excluded from the Lisbon treaty? Indeed, they thought they had achieved such an opt-out from the treaty until it was overruled subsequently by the European Court of Justice. Surely what we are doing now is trying to fulfil the objective that he himself had in mind.

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[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.

[Lord Lamont of Lerwick]

I apologise for interrupting the noble and learned Lord a second time. We have listened to what he has said with great care. He has spoken for 34 minutes. He said that he would answer the question I posed at the very beginning of his speech—namely, why he had altered his mind when previously he had tried to keep the charter out of the Lisbon treaty, when he then said that it ought to have no direct domestic effect. Why has he changed his mind?

[Lord Goldsmith]

My Lords, I was about to come to that and I am grateful to the noble Lord.

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[Lord Lamont of Lerwick]

My Lords, I shall speak to Amendment 14, the effect of which is to retain the charter as part of domestic law and to retain EU law under which claimants would be able to have domestic legislation struck down on the basis of incompatibility with the charter. Some noble Lords have expressed the view that they were baffled by the exclusion of the charter from this legislation, but I felt that the arguments were put very simply and cogently by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, at Second Reading when he simply pointed out that the charter is only one part of our extensive framework of human rights, that there would be a risk of confusion because of conflict with the ECHR and that what this was doing was complicating the situation to no good purpose.

Furthermore, the Secretary of State for Exiting the European Union has produced a memorandum showing how existing rights are being provided for in the legislation and in retained law. He has also gone further and said that if anyone can provide specific examples of rights that are not provided for, he will give the matter due consideration. Various people have suggested various things that may or may not be suitable for inclusion, but they will no doubt be considered by the Secretary of State and could be considered for primary legislation.

I asked the noble and learned Lord why he had changed his mind about the incorporation of the charter, which he and Prime Minister Blair strongly opposed in the Lisbon treaty. I do not want to go over that, as I think I made my point, but I suggest to the noble and learned Lord that he had very good reasons for excluding it, and that now is an opportunity—

[Lord Goldsmith]

In fact, this country accepted that the charter would become part of EU law in the Lisbon treaty—it is the opposite of what the noble Lord said.

[Lord Lamont of Lerwick]

Against the noble and learned Lord’s will. There was also an attempt to get an opt-out, which the European Court of Justice said was not valid. I see that the Minister is agreeing with me. I believe that is a correct account of what happened. It was struck down. The case in which it happened was, I think, Aklagaren v Hans Akerberg Fransson.