European Union (Withdrawal) Bill

Debate between Oliver Letwin and Suella Braverman

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

[Suella Fernandes]

I am pleased to follow my hon. Friend the Member for Middlesbrough South and East Cleveland (Mr Clarke) on his debut in Committee. I am sure we will all be treated to many more thoughtful contributions based on his experience as a lawyer before coming to this place.

I apologise at the outset, but I will be adding to the chorus of lawyers. There has been an abundance of lawyers—this debate has flushed us out, Mr Hoyle. I must say that I have sat here with nothing but admiration and respect for the very learned interventions and contributions from right hon. and hon. Members on both sides of the House, whose attitude has been to try to improve the Bill. They have obviously been received with a welcome from the Solicitor General, marked by his comments just now.

The issue is not about whether the charter is in or out, and it is not about being pro-rights or anti-rights. For me, it is about whether the Bill, which is designed to provide legal certainty on Brexit day, will achieve that aim or instead create a feast for lawyers, born out of legal uncertainty. The purpose of the Bill is to avoid the overnight evaporation of EU law on the date of our exit by providing certainty and predictability for businesses, individuals and foreign Governments dealing with Britain after we leave the EU.

We want to resolve questions rather than create them, but I do have real concerns. I have great respect for some of the amendments that have been tabled, which have raised many areas of confusion. For example, how would the common-law rules, the Human Rights Act and the charter interact, especially when rights are replicated in the Act and the charter but are interpreted by different courts? We have identical rights interpreted in one way by the Strasbourg Court and in a slightly different way by the Luxembourg Court. That only provides for inconsistency and confusion. What is the position for rights that appear in one document but not the other? What is the position for rights that are in the charter, but will be rendered completely futile as a result of Brexit due to their extensive references to the EU and other EU institutions?

More concerning is the confusion created by the remedies provided in the charter and the role of the Supreme Court and the European Court of Justice. The Human Rights Act contains protections for people in many ways: the right to a fair trial, a right to life, a right to a private life and family life, and the right to be free from discrimination. We in Britain should be proud of that document. Under the Act, the Supreme Court can make declarations of incompatibility in the event of a breach. That power is limited, as a reflection of the role of the Supreme Court in our constitution and the particularly fine balance between the judiciary and our legislature—that hard-won principle of parliamentary sovereignty.

That is not an obscure notion to amuse academics. It is the key foundation of our country’s governance that in this place, in this elected Chamber, we elected representatives have the final say on what rights people are afforded, what restrictions they are subject to, what remedies they can invoke and what responsibilities they owe. That is what our job is here in Parliament. We are elected and are subject to transparency. We are accountable and we can be kicked out if necessary. Judges, in comparison, are unelected. They are, of course, expert and robust in their integrity, but they are often unknown and are away from the glare of publicity. They are not answerable directly to the public in the way that elected representatives are. That is the importance of parliamentary sovereignty and the judicial deference enshrined in, and running through, the Human Rights Act. Only in cases of ultra vires and judicial review will UK courts make such a declaration. In the event of a declaration of incompatibility, there is no obligation on Parliament or the Government to agree to make changes, but often they will respond by amending legislation to align with judgments from the courts—for example, under section 10 of the Human Rights Act. That fine balance is important to ensuring the ultimate accountability of us rule makers and legislators.

I believe that the principle of parliamentary sovereignty could be undermined by the remedy in the charter for disapplying statute, as we saw in the case of Benkharbouche in the Supreme Court last year. The effect is to disregard the relationship between the judiciary and the legislator and to render our Supreme Court more of a constitutional court than an appellate court, which interprets the law rather than declaring what the law ought to say.

Further uncertainty is caused by questions around the potential horizontal application of the charter—between individuals rather than between the state and an individual, as is the position in the Human Rights Act—and questions persist on its application to anything within the scope of EU law as opposed to the implementation of EU law. For me, those principles are not yet clarified and would only create more confusion, if the tabled amendments were to be passed. As I said, this is not about being in favour of or against rights; this is about providing a workable regime, rather than one fraught with confusion and at odds with fundamental principles.

We must not forget that the charter was not originally intended to be the source of rights for the UK. It was meant merely to codify existing rights, as an instrument of the EU, through the interpretation of the ECJ.

[Sir Oliver Letwin]

I think I agree with everything my hon. Friend has said. Does she agree that it would nevertheless be possible to put these rights under the umbrella of additions to the Human Rights Act and thereby enshrine them without creating a role for the Supreme Court to strike down Acts of Parliament?

[Suella Fernandes]

In principle, that would be possible, but I pray in aid the comments of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who has just entered the Chamber, and who eloquently explained that there is no substantive need to do that because those rights are protected in existing legal frameworks or the common law.

As I was saying, the charter is an instrument of the EU for allowing the activism of the ECJ. It is a mechanism intended to ensure the supremacy of EU law in national legal orders, as is made clear in the preamble and in the recent case of Siragusa v. Regione Sicilia, in which it was made clear that the primacy of EU law was the priority. If we are truly leaving the EU, it no longer makes sense for us to be bound by a document that is furthering EU integration.

I appreciate the constructive attitude of all colleagues in attempting to help the Government to improve the Bill, but I gently caution against the risks presented by some of the amendments. The British people voted last year to restore sovereignty to UK courts and return supremacy to our judges, because they trust our legal order. Why do they trust it? They trust it because for centuries, since 1215 and Magna Carta, this country has been the home of civil liberties and human rights and has protected the vulnerable against excesses of power. That is a tradition of which we are proud and which will be protected under this Government.