European Union (Withdrawal) Bill

Mark Harper Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Sir William Cash (Stone) (Con)]

rose—

[Mr Mark Harper (Forest of Dean) (Con)]

rose—

[Mr Leslie]

What a choice. I will give way to the hon. Member for Stone (Sir William Cash).

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[Mr Leslie]

My hon. Friend makes a good point. If the Bill contained a provision to copy and paste many of the charter’s general rights into UK law to preserve the current arrangements, the Government would have a reasonable case to make, but there is no alternative provision. The legislation simply deletes the charter of fundamental rights.

[Mr Harper]

I have two points. First, when the charter of fundamental rights was introduced, it was said that it simply restated existing rights that were elsewhere in European Union law. Secondly, the argument that if rights are not given to us by the EU, we in Britain could not somehow manage to create them ourselves is utter nonsense. We are signed up to the European convention on human rights, we have the Equality Act 2010, and we are a signatory to many UN treaties. The notion that if we somehow do not adopt new clause 16, we somehow do not have any human rights is offensive nonsense.

[Mr Leslie]

It might well be the case that Parliament could salvage many of the protections over time and put them on our statute, but the Bill seeks to delete the charter of fundamental rights from the point that the legislation is enacted. In other words, it would take away rights that we hope may eventually be replaced, but there are none of the guarantees that we currently enjoy by virtue of our membership of the charter.

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[Mr Harper]

My right hon. and learned Friend raised the issue of the extension of rights. Is not one of the problems with the charter and its interpretation by the courts that, because it is a very general set of rights, it can be extended by courts? Unlike with the ECHR and the Human Rights Act, it is not just about declaring incompatibility, but about striking down Acts of this Parliament too. This does not get the balance right, which he accepts is very important.

[Mr Grieve]

That of course was one of the great anxieties when the charter was enacted. Indeed, it is the reason for the UK’s so-called opt-out, but it is not an opt-out because, in so far as the charter reflects general principles of EU law, we are bound by it. One example, which my right hon. Friend will remember, was the case of Chester and McGeoch and prisoner voting rights. There was an attempt to invoke EU law as a tool in order to force the UK Government to bring in prisoner voting, at least in relation to European elections. I think that it is fair to say that it caused much disquiet in government as to the possibility that that might be the outcome of the court case. Indeed, I went to argue the court case as Attorney General on the Government’s behalf in our Supreme Court. Invoking EU law was used as a tool, but it did not lead to that outcome.

Looking back over the history of the charter, I do not think that some of the fears that were expressed—that it would be used for an expansionist purpose by the European Court of Justice in Luxembourg—have been proved to be correct. In any event, we are leaving the jurisdiction of the Court of Justice of the European Union, unless we have to stay in it for transitional purposes. When we are gone it will be our own Supreme Court, in which I have enormous confidence, that will carry out that interpretation. I do not want to labour this point much further. I simply want to say that there is a really important issue for us to debate. It is about what happens to the sorts of rights that have come to us through the charter and through the EU. The matter cannot be ignored. In the short term—the sword of Damocles moment again—the Government must think about it before the Bill has finished going through this House.

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[Paul Blomfield]

I am puzzled by that point, because EU-retained law will effectively become statute law, and that will be carried forward by the application of the charter. It is not quite clear what the right hon. Gentleman is getting at.

[Mr Harper]

I listened carefully to what the hon. Gentleman said about article 6 of the European convention. I think that he said it applied only in criminal cases, but having looked at the article it enforces civil rights as well. I remember from my own experience that we took it into account in immigration cases, other tribunal cases and, I think, in some applications of procedures of the House that may or may not be compatible with that right. The measure is much wider than he suggests, so I do not think he was exactly right about that.

[Paul Blomfield]

As I understand it, it does not apply in all civil cases—only civil rights and obligations under the convention, so it is effectively a narrowing if we lose it.

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[Stephen Timms]

I rise to speak to amendment 151, which, at first sight, looks rather technical but actually references, as we have already established in this debate, a hugely important issue for the UK economy. I am very grateful to all those Members, from all parties across the House, who have signed the amendment, and to the Chairman of Ways and Means for selecting it for debate.

The amendment deals with future electronic communication between the UK and the remaining member states of the European Union. The Government’s future partnership paper on this topic, published in August, was absolutely right to highlight just how important an issue this is for the UK economy. That paper pointed out that the UK accounts for 0.9% of the world’s population, 3.9% of the world’s GDP, and 11.5% of the world’s cross-border data flows, 75% of which is with other EU countries. This is an enormously important issue, particularly for the UK economy given its reliance on its digital aspects.

The Government are absolutely right to argue that we must avoid restrictions on cross-border data flows because they would affect the UK more than almost any other country in the world. It is also right to point out that the UK has very strong personal data protection. That is currently being strengthened by the new Data Protection Bill being debated in the other place, which will bring our arrangements into line with the EU’s general data protection regulation, or GDPR, and the Government are absolutely right to make that point.

Nevertheless, we face a serious potential problem: the edifice of data privacy law in the UK rests on article 8 of the charter of fundamental rights. Under clause 5(4) of this Bill, article 8 will not be part of domestic law after we have left the European Union. Will the omission of article 8 from our law make any practical difference to how the law works in the UK? There have been some suggestions that it will not, but the evidence is that, in fact, it will.

In the exchange between the hon. and learned Member for Edinburgh South West (Joanna Cherry) and my hon. Friend the Member for Feltham and Heston (Seema Malhotra), we heard about the evidence given by Dr Charlotte O’Brien, a senior lecturer at York Law School, to the Select Committee on Exiting the European Union. She said:

“exclusion of the charter is problematic for a number of reasons”,

and I want to quote a couple of the points that she made.

Dr O’Brien said that a large number of appeal cases in UK courts cited the charter. She added:

“That is a lot of cases that have to be read differently and it is not clear how they are to be read differently.”

One of the appeal cases under discussion—we have referred to it a number of times in the debate—involved my hon. Friend the Member for West Bromwich East (Tom Watson) and the right hon. Member for Haltemprice and Howden (Mr Davis), now the Secretary of State for Exiting the European Union.

[Mr Harper]

I was just listening to what the right hon. Gentleman said about the court cases. Would it not be the case, if we did not have the charter of fundamental rights and article 8, that all those cases would simply cite the other pieces of legislation he mentioned—the general data protection regulation and the Bill we are currently passing through Parliament? I do not really see the problem he is trying to fix.

[Stephen Timms]

The right hon. Gentleman gets right to the heart of the case. I believe that the answer to his question is no they would not, or at least we do not know what the outcome would be. I suggest that the right hon. Member for Haltemprice and Howden might well not have won his case against the Government if he had not been able to rest on article 8. The hon. Member for Banbury (Victoria Prentis), who intervened earlier, might have persuaded the court that the then Home Secretary, now the Prime Minister, was right in what she was doing and that the right hon. Member for Haltemprice and Howden was wrong. We do not know what that Appeal Court would have decided, but I put it to the right hon. Member for Forest of Dean (Mr Harper)—I think he is rather implicitly accepting the point—that if article 8 had not been there for the right hon. Member for Haltemprice and Howden to rest on, the outcome of that case and of lots of others could well have been different.

To quote Dr O’Brien again, she made the point that the gap that is created by no longer having the charter of fundamental rights in UK law is probably clearest in the case of data protection because of the charter

“creating fairly specific, concrete rights that are not necessarily enunciated in exactly the same terms elsewhere.”

I think that is the answer to the intervention I have just been responding to: actually, these rights are not readily available elsewhere.

I was delighted to hear from the Minister that we will get a document—I think he said by 5 December—setting out all the rights in the charter of fundamental rights and where they can be found elsewhere in UK law. That will make very interesting reading. I simply make the point at this stage that a number of experts are saying that some of the rights—this is particularly the case with article 8—are not elsewhere. It will be interesting to see what that document says.

It is worth reminding the Committee of what article 8 says. The first two of the three points within it state:

“Everyone has the right to the protection of personal data concerning him or her…Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.”

As has been mentioned in this debate, there is a right to be forgotten, and that is provided by the right to have data rectified. It goes on to say that there needs to be an independent body in charge of all this. That is what article 8 says, word for word. My amendment says that that needs to be on the statute book in the UK. I do not think that those forms of words would cause great difficulty to the Government. We all agree that these are appropriate things, but they need to be explicitly set out in the law so that they can be drawn on in future, because they are not set out clearly elsewhere.

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[Stephen Timms]

My hon. Friend is absolutely right. This is such an invitation, and it is a terrible risk to take. Frankly, I think it is playing fast and loose with a very important part of the UK economy.

Let me finish by quoting the industry body representing this part of the UK economy, techUK, which is very deeply concerned about this issue and supports amendment 151. It makes the point that

“the Government must do all it can to ensure that we are in the best possible position to secure adequacy, and this includes making clear, at every opportunity, that the UK’s data protection framework is equivalent to the one we have operated as an EU Member State.”

Leaving article 8 off the statute book seriously imperils the future achievement of such an adequacy determination. We will of course argue that our arrangements are adequate, but for data exchanges with EU countries, it will not be our call; it will be their call. They will make the decision: the call will be made by officials and politicians in the European Union and by the European Court of Justice. It is running too great a risk for our digital economy—at 10% of GDP, it is proportionately the biggest digital economy anywhere in the G20—and I urge the Committee not to run that risk or to play fast and loose with the UK economy, but to accept amendment 151.

[Mr Harper]

I should probably declare whatever the opposite of an interest is, in that unlike many of those who have spoken so far, I am afraid that I am not a lawyer. I am a humble accountant, so I hope colleagues will forgive me if I do not always get the exact legal points they have made absolutely spot-on. However, I will do my best to do justice to the debate.

I will run through the new clauses and amendments in broadly chronological order as the debate has flowed, making comments that I think are pertinent based on the arguments that have been made. Let me start with new clause 16, which was moved by the hon. Member for Nottingham East (Mr Leslie). I listened carefully to what he said, and I think the Minister dealt with it effectively by committing the Government, quite explicitly, to producing the memorandum promised by the Secretary of State in evidence to the Select Committee by 5 December.

There was a bit of an exchange in one corner of the Chamber when my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) sought clarification on whether that would be before Report. I fear, having done a little mental arithmetic, that it will be well before Report, because there are five remaining days in Committee and given the Budget debate, even if we sat every day and fitted them all in, we will not get to Report by 5 December.

We will therefore have the memorandum while we are still in Committee, so we will be able to see whether what the Minister and the Government say is correct, as I believe it is, which is that all the articles in the charter of fundamental rights are underpinned by a retained EU law foundation that will be brought into UK law. I do not know how the Government will lay out the memorandum, but we will be able to see how each of the rights is underpinned and its legal basis. We will be able to have a debate about that, and if Members are not satisfied with the memorandum that the Secretary of State has brought forward, that will leave open the opportunity for tabling further amendments on Report. I therefore hope that the hon. Member for Nottingham East will not need to press his new clause.

The right hon. Member for Tottenham (Mr Lammy) is not in his place, but I want to pick up his remarks about the signals and messages sent out. I do not think that that is a helpful way of looking at this issue. The charter of fundamental rights came into force with the Lisbon treaty. Unlike some hon. Members, I sat through 10 of the 12 days of debate on the Lisbon treaty—much like the debates that we are having now, although we were in opposition then. Before that measure came into force, we did a pretty good job in this country of protecting rights, and we were one of the best countries at protecting rights. The idea that if we do not have the charter of fundamental rights somehow dreadful things will befall us does not stand up.

The right hon. Gentleman’s specific example of people, including children, who were held and used in slavery and servitude around the world, was a particularly poor one. This country introduced the Modern Slavery Act 2015 under the leadership of my right hon. Friend the Prime Minister when she was Home Secretary, and demonstrated that it did not follow the world on human rights matters but led it. That groundbreaking piece of legislation introduced a significant number of measures for businesses to be able to understand supply chains, and introduced considerable legal powers to deal with human trafficking and modern slavery. It stands as a positive beacon in the world, rather than the negative one that the right hon. Member for Tottenham suggested.

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[Stephen Timms]

May I just challenge one point? If the right hon. Gentleman looks at the Data Protection Bill currently being debated in the other place, he will see that it does not say that everybody has the right to have their personal data protected. It does not set the right in the terms set out in the article. From a European perspective, and from an Appeal Court perspective, that is potentially a problem.

[Mr Harper]

I will come on to that at the end of my remarks. I followed the right hon. Gentleman’s speech very carefully. He is absolutely right that we should deal with this in a serious way, because it is a very significant part of our economic present and, I hope, an increasing part of our economic future as we in this country are particularly well placed to take advantage of the digital economy.

The other interesting point flagged up by my right hon. and learned Friend the Member for Beaconsfield is the fundamental argument about rights legislation. He pointed out that some decisions on potentially striking down Acts of Parliament would have to be taken by the UK Supreme Court, not the European Court of Justice. He said he was very relaxed about that because he had great confidence in our judges, as do I. For rights legislation, however, there is a different argument to have, which is not about the nationality or otherwise of the judges or the court, but whether such decisions should be taken by judges or by democratically elected politicians in this House. We had this argument when we debated prisoner voting—not on the nationality of the judges and the court, but on whether that was a proper decision to be made in this democratically elected House or by judges interpreting a living document. That was a point my right hon. and learned Friend teased out in his remarks.

Listening to the debate as it progressed, my right hon. and learned Friend accepted that his amendments may not be the best way to deal with the potential problems he flagged up. The exchange between him and my right hon. Friend the Member for West Dorset was very interesting and spoke to the debate on schedule 1, to which the Solicitor General will reply. Amendment 10 would get rid of paragraphs 1, 2 and 3 of schedule 1. The reason my right hon. and learned Friend gave for removing paragraph 3 was that it talked about the general principles of EU law and not the retained principles. Paragraph 2 tries to deal with the retained principles by saying that we keep all the general principles that have been reflected in decided case law before exit day.

That was an interesting discussion. It suggests that it might be possible for the Solicitor General to find a way for the Government to amend the Bill on Report. Clearly, my right hon. and learned Friend wanted a little specificity on that, although I do not agree with my right hon. and learned Friend the Member for Rushcliffe, who tempted the Government just to accept the amendments and then correct them. Having been in the Solicitor General’s position at the Dispatch Box, I would prefer the risk-averse approach of inviting the House not to be tempted by the amendments and then coming back afterwards, but I accept that those tempted by the amendments will want a little specificity and detail from him about the nature of what he will reflect on and bring forward. I hope that he can produce the right level of specificity to give my colleagues that confidence.

[Anna Soubry]

Does this debate not show how technical this is and how good it is—I know people get a bit agitated about lawyers—to have so many lawyers, especially constitutional lawyers, on these Benches? Actually, most people are keen to get the Bill right on a constitutional level, and the more we can debate it, thrash it around, get it sorted and reach sensible compromises, the better it will be for the Bill, for Parliament and for this whole Brexit business, because it will stop some of this division and bring us all together.

[Mr Harper]

I am grateful for that intervention. Actually two other useful points came out that I had not previously heard in this debate. One was about rights. A discussion is under way, which will be dealt with partly in this Bill and partly in the other withdrawal Bill, on the extent to which certain important matters will only be dealt with in primary legislation. Ministers will be clear that they will not use the ability to change those important rights in secondary legislation. To some extent, that has been dealt with by the fact that we will have the other withdrawal Bill. I think that the Secretary of State has given a commitment that certain things will only be dealt with in primary legislation.

On the second point, I hope the Treasury Bench will forgive me—tempting a discussion about amending the Human Rights Act is probably not something that in my previous job as Government Chief Whip I would have wanted to encourage—but a sensible argument has been made for saying that, if there are important rights that we think are not adequately reflected in legislation, at some point, in due course if not perhaps immediately, some of them might benefit from being brought into the Human Rights Act. That might be worth thinking about, although it would have to be done very carefully, because once we start down that process of amendment, I do not know where it will end. Those two avenues for dealing with this were, I think, very sensible.

I think that my right hon. and learned Friend the Member for Beaconsfield accepted that it might not be right to pursue amendment 8, but, on amendment 10, although I would not agree with the approach of my right hon. and learned Friend the Member for Rushcliffe, a point has been made on which Ministers could sensibly reflect. I hope that when the Solicitor General responds he will be able to make a sufficiently specific commitment to persuade my right hon. and learned Friend the Member for Beaconsfield and others not to press amendment 10.

The hon. Member for Sheffield Central (Paul Blomfield), who is not in his place but whose Front-Bench team are more than adequately represented, said that rights were not as effective if their source or root was not clear. I am afraid that this is a lawyerly point that I did not quite follow, but I hope that the Minister dealt with it. The memorandum he is going to bring forward should make clear the source of each of the rights in the charter of fundamental rights, so we should be clear about the retained law being brought forward. I hope, then, that that central point of the hon. Gentleman’s argument will be dealt with.

Let me return to article 8 of the charter of fundamental rights, to the point made by my hon. Friend the Member for Chelmsford (Vicky Ford) in an earlier debate and to the fundamental underpinning of the argument advanced by the right hon. Member for East Ham (Stephen Timms). I think that my hon. Friend the Member for Chelmsford slightly overstated what the article says. She claimed that it said that everyone owned their data, whereas it actually says that people have the right to protect their personal data. She also spoke about the level at which it was necessary for our law to be exactly the same as ongoing European legislation.

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[Antoinette Sandbach]

The Business, Energy and Industrial Strategy Committee heard some very interesting evidence today from representatives of the aerospace and airline manufacturing sectors. They said, “We want identical regulations for the safety of passengers. It is vital to the industry for our regulations to be exactly matched with those of Europe.” There will be some areas in which we shall need regulatory matching.

[Mr Harper]

That is a very helpful point. There may well be areas in which, because of the nature of the product or service involved, the exact matching of regulations will be judged to be right, but that may well not be the case in every single area. Perhaps what we need is a sensible structure that allows us to have some debates and decide what is the right thing to do, and then have conversations with our European neighbours. That will be one of the big arguments as we negotiate the trade deal, because it is relevant to the extent to which we can then have different arrangements that will enable us to seize the opportunities that are undoubtedly available to us around the globe.

I was on the remain side, as, indeed, was my hon. Friend. There is also the argument that if we continue to match every single regulation introduced by the European Union, particularly when we have no say in the process, we shall not be gaining any of the benefits of not being in the EU, which would rather defeat the point of leaving in the first place. I certainly believe that, given that the country decided to leave, we need a good, deep relationship with our EU partners so that we can continue to trade with them, but we also need to be able to take full advantage of every opportunity of securing that incremental business from around the globe. My hon. Friend is right, however: we should listen to the businesses that are involved in these sectors, and make the right decisions.

Let me now deal with the specific points made by the right hon. Member for East Ham about amendment 151, which would require the laying of

“regulations to create a fundamental right to the protection of…data.”

There is an argument here about what will or will not be the behaviour of our European partners, both the member states and the Commission. It seems to me that, if we deliver legislation according with the general data protection regulation in our Data Protection Bill, along with other provisions that protect such data, the European Commission may decide, for what will be political reasons, to rule that there is some incompatibility. If the Commissioners have made up their minds, for political reasons, to be mean and horrible to us and try to damage our economy, there is not very much that we can do about that. Even if we were to do what the right hon. Gentleman has suggested, they would just dream up another excuse to damage us.

If that is how the Commission is going to behave, it is not an organisation I would want to be a part of, but I do not take the view that that is what the Commission or the other member states are going to do. It is certainly not the way we have approached the negotiations. The Prime Minister has been very clear that we want a deep and special partnership with our European neighbours. We have made clear—this is relevant on the data issue—that we will have an unconditional relationship with our EU partners on security and intelligence co-operation: we will use our assets and resources to help to defend and protect European security. On that basis, it would be very churlish if the European Commission were to take the approach the right hon. Gentleman set out.

[Stephen Timms]

I agree: I do not think the Commission will be churlish or needlessly spiteful. But the problem is that if we do not have a clear right in law that everyone’s personal data will be protected—if article 8 is not there any longer, we will not—that is an invitation to the Commission to find against us. My point is that we should not be taking that risk.

[Mr Harper]

I accept that we should not take unnecessary risks, but it seems to me that we could deal with that. I confess that I am not completely across the content of the Data Protection Bill—I hope the right hon. Gentleman will forgive me—but it seems to me that we could make sure we deal with that concern in that Bill, and Ministers on the Treasury Bench will no doubt listen to that point.

My final point is about something that has been brought up on a number of occasions. One benefit I have from being on the Back Benches is that I do not feel the necessity to defend every aspect of Ministers’ behaviour, particularly things they did before they were Ministers. The case that keeps being cited—[Interruption.] The Ministers on the Front Bench are looking very worried now, because they do not know what I am about to say. I happen to think that the Secretary of State for Exiting the European Union was not correct in the case he brought against the Government, and I happen to think that the Prime Minister when she was Home Secretary was right to defend it.

We also dealt with any potential defects in the Data Retention and Investigatory Powers Act 2014 in the ground-breaking legislation this House passed more recently, the Investigatory Powers Act 2016. I am reasonably familiar with that legislation: I had to consider it when I was a member of the Government, and dealt with how we approached the House. The way we proceeded with that legislation was by bringing forward a Bill that was in good shape at the start of the process, and then having a very thorough scrutiny process across parties. The Opposition took a sensible, grown-up approach on it, because it was very important legislation. We dealt with the concerns, and that is the right way to proceed. This House is perfectly capable of dealing with such concerns, and this House is the right place to deal with them.

The Modern Slavery Act 2015 is a model for legislation to deal with people being kept in servitude, and, similarly, the Investigatory Powers Act is ground-breaking, world-leading legislation on how to balance individual freedoms and rights to privacy with the legitimate rights of the state to ensure it protects those citizens from those who will do us harm. This House and the other place got the balance right in that legislation, and we should have more confidence in the ability of ourselves as parliamentarians.

The hon. and learned Member for Edinburgh South West (Joanna Cherry), who speaks for the SNP, harrumphed a little a bit—she is not in her place to harrumph again, probably—when my right hon. Friend the Member for Wokingham (John Redwood) spoke about this House being the place where we guarantee those freedoms. She was not hugely impressed by that argument, but the two examples I have given show that we should have a bit more self-confidence about this House being the place where we defend those essential rights. I therefore commend the Bill in its present shape to the House and hope that hon. Members on both sides of the Committee do not press their new clauses and amendments to the vote.

[Several hon. Members rose—]