European Union (Withdrawal) Bill

Simon Clarke Excerpts

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

[Antoinette Sandbach]

It is a pleasure to follow the hon. Member for Dulwich and West Norwood (Helen Hayes). I agree with her that human rights law is a developing area of law, but I do not agree that this Government have any intention of trying to undermine it.

We have heard a very interesting exposition of why the charter should not be translated into UK law. I accept that there are flaws with amendment 8, but I want to speak to it none the less because it is quite clear that, as I believe the Government have now accepted, the third category of rights needs some form of protection and incorporation, if it is not already protected.

The development of human rights law started out in the 1920s with the Geneva conventions. Those conventions were signed by a limited number of countries and were basically the fundamental guarantees of the rights of citizens when all law and order has broken down and they are facing the worst circumstances of war and chaos. That is the true meaning of the word “chaos”, I would say to my hon. Friend the Member for Fareham (Suella Fernandes). The law has moved on and changed, and countries that were never signatories to those conventions are now subject to their requirements because they are the basis of the minimum rights that should be guaranteed in any civilisation. Countries that fail to guarantee those rights get prosecuted under the International Court of Justice in The Hague. In future we will no doubt see actions on Syria, and other actions. The 1950 convention that we originally signed, which forms the basis of our Human Rights Act, has therefore moved on, and there are rights contained in the charter that are not in the Human Rights Act.

[Mr Simon Clarke (Middlesbrough South and East Cleveland) (Con)]

The extra rights, or third-category rights, in the charter seem to be predominantly matters of social policy such as healthcare and schooling. While we might all agree that those things should happen, they should not be rights in a charter but matters of policy for Government to determine. That is why I take exception to my hon. Friend’s argument. This is not really about rights but about policy.

[Antoinette Sandbach]

I am afraid that the Walker case demonstrates exactly the opposite. Somebody was discriminated against because they were in a same-sex marriage, and the charter guaranteed the partner’s right to the pension. That was not a matter of social policy; it was enforced because of the charter. That is why this debate is incredibly important. There will potentially be some areas that are a matter of policy, but it is important for the Government to go away and look at the amendments because serious points are being made that will affect people’s everyday lives. This is not a debate on principles that do not matter; these are really important, fundamental issues that, as a democracy, we should be looking at in a sensible and reflective way.

--- Later in debate ---

[Alex Chalk]

That is exactly right. I, respectfully, completely agree with my right hon. Friend. What has been such a benefit of this debate is that we have identified a third category of rights that Members on both sides of the House recognise there is a real public benefit in adding to the corpus of rights enjoyed by the British people. I entirely agree that we should look at whether they can be added pro tem to the Human Rights Act.

My fundamental point is that, if we are inching our way towards a written constitution, retaining the charter, which is in effect a proto-constitution, on the basis of an amendment debated for just a few hours in this Chamber is entirely the wrong way to go about it. For that reason and that reason alone, I am supporting the Government.

[Mr Simon Clarke]

I rise to support the Bill, particularly in opposition to amendments 8 and 46, as well as new clause 16.

I want to establish from the outset that I am not in any way cavalier about the concept or the subject of human rights. They underpin a free and just society, and all parliamentarians should be vigilant in their defence. Today’s debate underscores the significance of that. However, to quote Oxford’s Professor Richard Ekins:

“There is a fundamental difference between human rights and human rights law. The Charter is one way to attempt to protect human rights, a poorly framed and…inept way at that.”

Contrary to what the hon. Member for Bristol North West (Darren Jones) said, I do not need the charter of fundamental rights to be proud of my country.

There are a number of reasons why I believe the incorporation of the charter of fundamental rights into our law would be the wrong thing to do. The first concerns the scope of the charter’s application. Article 51 states:

“The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union…and to the Member States only when they are implementing Union law.”

Needless to say, once we leave the Union, we will not be a member state. As has been observed, many of the charter rights are necessarily contingent on our EU membership, and still more are directed not towards member states, but the Union institutions and their policies. We have already touched on that, and I will not dwell on it further.

Let us follow the logic that we should incorporate the charter into UK law. How would this work? There seem to be two possible scenarios. First, if we were to approximate the charter’s original application, we could amend it in such a way that it applied solely to retained EU law. That is the substance of the amendments. As my hon. Friend the Member for Cheltenham (Alex Chalk) has pointed out, that would lead to the bizarre situation whereby some parts of UK law would be subject to a different human rights regime. That is a recipe for confusion and disaster. Alternatively, we can amend the charter so that it increases its scope to cover all UK laws and institutions. I would hazard a guess that that is not exactly what our constituents were thinking of when they voted for Brexit.

Notwithstanding that basic point, either route would further complicate the relationship between the charter and the Human Rights Act. All transposed EU law will become subject to the Human Rights Act on transposition anyway, and having two parallel and perhaps in places contradictory constitutional Acts covering precisely the same issues in the same sphere of application would serve to undermine, rather than uphold, the rule of law. That is because charter rights, most seriously social rights, are so flexible and contested that they are vulnerable to a near infinite number of interpretations, which is precisely the problem.

When I worked for my hon. Friend the Member for Esher and Walton (Dominic Raab), he would cite a quote from Montesquieu that was absolutely on point:

“Nor is there liberty if the power of judging is not separate from legislative power…If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator.”

Where we fail to legislate the judiciary fill the gaps. Rights creep has been a key objection from our constituents for many years, and rightly so. In at least two cases, British judges have gone beyond ECJ case law, relying on the charter to disapply Acts of Parliament. In Benkharbouche, parts of the State Immunity Act 1978 which protected embassies from immunity against employment law claims were set aside. In Vidal-Hall, part of the Data Protection Act 1998 was overridden, overturning a limitation on what damages could be recovered. As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) said, this is properly a matter for the House to determine. The ECJ itself has overruled parts of the Data Retention and Investigatory Powers Act 2014 by reference to the charter—a decision that puts the application of the Investigatory Powers Act 2016 in serious doubt. That is not a small point. The process of striking down legislation under the charter goes far beyond the scope of the Human Rights Act, which allows the courts to make a declaration of incompatibility where there is a need to do so.

There is one final reason why we should resist charter incorporation, which is that to do so would probably be superfluous. We have heard from Ministers, who have struck a notably conciliatory tone, that the Government will provide detailed analysis of how each charter right will be addressed in a memorandum that is due on 5 December. If we are to go on to address what has been referred to as the third category of rights—rights that are not listed in the European convention on human rights and which are not rendered redundant by our leaving the EU—this process should be led by the elected House of Commons. That may very well be the right thing to do, but it is clear to everyone that retaining the charter is not the right vehicle by which to do it.

Lest we forget, the British public had no idea that the charter would evolve in the way that it has. Protocol 30 of the treaty on the functioning of the European Union states that

“the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles”.

We have heard about The Beano, and about former Attorney-General Peter Goldsmith, who said in June 2004:

“The Charter is a consolidation of existing rights...It is not a mine for new human rights in this country.”

Crucially, in 2008, on Second Reading of the EU (Amendment) Bill that ratified the Lisbon treaty, David Miliband, told the House:

“The treaty records existing rights rather than creating new ones. A new legally binding protocol guarantees that nothing in the charter extends the ability of any court to strike down UK law”.—[Official Report, 21 January 2008; Vol. 470, c. 1250.]

Our constituents were given an inaccurate prospectus of how the charter would evolve, although I accept it was made in good faith at the time. In the light of that, my position is very clear that the charter should not be incorporated into our law to go on evolving in that way according to the whims of unelected judges.

Tonight we have an opportunity to reassert one final time what this House has been told for the best part of 18 years: the rights under which we live should have their origin in this House and, ultimately, in the British people, under whose authority we serve.