European Union (Withdrawal) Bill

Debate between Seema Malhotra and Joanna Cherry

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

[Joanna Cherry]

If I may say so, I think that that is to misunderstand. I am not responsible for the false assurances that were given about the opt-out when this country signed up to the charter. They did not come from the Scottish National party, and I think it is fair to say that they have now been disowned by the Labour party. In reality, the incorporation of the charter in our law has meant enhanced direct effect. I use the term “direct effect” rather than “direct applicability” because people are able to take an action and refer to those rights in the course of their action, as we saw in the Supreme Court case last summer when a gentleman named Mr Walker was able to realise equal pension rights for his husband, despite a loophole in UK law about the equalisation of pension rights for gay couples, because the EU charter closed that loophole.

I want to give the House a brief list of some of the rights involved. We have heard a lot about data protection, and I know that others will want to address that issue, but it is worth remembering that the right to be forgotten on Google and other search engines—which I believe is of interest to some Members—stems from the EU charter. There is more to it than that, however. Let us look at the words of others, rather than simply accepting the argument on my say-so.

When the Exiting the European Union Committee took evidence on these matters, Caroline Normand, the director of policy at Which?, told us that

“the Charter of Fundamental Rights contains some really important principles for consumers. The particular ones that I would highlight are the right to a high level of human health protection, which is article 35, and a right to a high level of consumer protection.”

She referred to the case last May—it has already been mentioned today—when the large tobacco companies brought judicial review proceedings challenging the regulations that introduced standardised packaging for tobacco products. The High Court dismissed the case, referencing the public health and other rights set out in the charter. That is a pretty meaningful right for public health in these islands.

Dr Charlotte O’Brien, a senior lecturer at York Law School, told the Select Committee that she had produced an approximate count for the number of times the charter was referenced in case law. She found that the charter was cited in 248 cases in England and Wales, 17 in Northern Ireland, 14 in Scotland and 98 in the European Court of Human Rights, and in 832 EU judgments, 515 of which were from the Court of Justice. Her point was that that is an awful lot of cases that would have to be read differently, and it is not clear how they are to be read differently.

[Seema Malhotra (Feltham and Heston) (Lab/Co-op)]

The hon. and learned Lady and I both sit on that Committee. I would like her views on another point made by Dr O’Brien, which was that the school of thought that says that excluding the charter might not make that much difference is misleading because of the extent to which it is embedded in a lot of what we would consider to be retained EU law, and disentangling that would be extremely complicated.

[Joanna Cherry]

Dr O’Brien did indeed make that point, and I think that anyone interested in the detail of why removing the charter from domestic law would take away rights would be well advised to read her evidence.