“(1) Within one month of Royal Assent of this Act, HM Government shall lay a report before both Houses of Parliament reviewing the implications of removing the Charter of Fundamental Rights from domestic law after exit day as set out in section 5(4) of this Act.
(2) The report under subsection (1) shall set out the policy of Her Majesty’s Government specifically in relation to the fundamental rights of—
(a) dignity, the right to life, to freedom from torture, slavery, the death penalty, eugenic practices and human cloning,
(b) freedoms, the right to liberty, personal integrity, privacy, protection of personal data, marriage, thought, religion, expression, assembly, education, work, property and asylum,
(c) equality, the right to equality before the law, prohibition of all discrimination including on basis of disability, age and sexual orientation, cultural, religious and linguistic diversity, the rights of children and the elderly,
(d) solidarity, the right to fair working conditions, protection against unjustified dismissal, and access to health care, social and housing assistance,
(e) citizens’ rights, the rights of citizens such as the right to vote in elections and to move freely, the right to good administration, to access documents and to petition Parliament, and
(f) justice, the right to an effective remedy, a fair trial, to the presumption of innocence, the principle of legality, non-retrospectivity and double jeopardy.”—(Mr Leslie.)
This new clause would require Ministers to produce a report reviewing in full the implications of removing from UK law the Charter of Fundamental Rights – and the rights for UK citizens which it has help to guarantee.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 78—Consequences of leaving the European Union: equality—
“(1) This section comes into force when the power under section 14 to appoint exit day for the purposes of this Act is first exercised.
(2) The purpose of this section is to ensure that the withdrawal of the United Kingdom from the European Union does not diminish protection for equality in the law of the United Kingdom.
(3) All individuals are equal before the law and have the right to the equal protection and benefit of the law.
(4) All individuals have a right not to be discriminated against by any public authority on any grounds including sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.
(5) The following provisions of the Human Rights Act 1998 apply in relation to the rights conferred by subsections (3) and (4) as they apply in relation to Convention rights within the meaning of that Act—
(a) section 3 (interpretation of legislation);
(b) section 4 (declaration of incompatibility);
(c) section 5 (right of Crown to intervene);
(d) section 6 (acts of public authorities);
(e) section 7 (proceedings);
(f) section 8 (judicial remedies);
(g) section 9 (judicial acts);
(h) section 10 (power to take remedial action);
(i) section 11 (safeguard for existing human rights); and
(j) section 19 (statements of compatibility).
(6) A court or tribunal must have regard to any relevant decisions of the European Court of Human Rights in considering—
(a) the application of this section generally, and
(b) in particular, the meaning of discrimination for the purposes of this section.”
This new clause would ensure that the rights of equality presently enjoyed in accordance with EU law are enshrined in free-standing domestic law after the UK leaves the EU.
New clause 79—Provisions relating to the EU or the EEA in respect of EU-derived domestic legislation—
“(1) Notwithstanding the provisions of section 5(1), HM Government shall make arrangements to report to both Houses of Parliament whenever circumstances arising in section 2(2)(d) would otherwise have amended provisions or definitions in UK law had the UK remained a member of the EU or EEA beyond exit day.
(2) Notwithstanding the provisions of section 5(1) and having reported to both Houses of Parliament, HM Government is bound to consider whether it should incorporate amended provisions or definitions into UK law, in order to ensure that the rights of workers and employees in the UK are no less favourable than they would have been had the UK remained a member of the EU or EEA beyond exit day.
(3) Such circumstances arising in section 2(2)(d) include but are not limited to—
(a) any future EU Directives relating to family-friendly employment rights; including but not limited to rights for pregnant workers and employees, and those returning from maternity leave,
(b) any future EU Directives relating to gender equality,
(c) the proposed Directive of the European Parliament and of the Council on work-life balance for parents and carers.
(4) Reports presented under subsection (1) must include—
(i) an assessment of how such amendments to UK law would have impacted sex equality in the UK had the UK remained a member of the EU or EEA beyond exit day and
(ii) an assessment of how a failure to implement amended provisions or definitions in UK law will impact the ability of families to combine work and care in the UK and gender equality in the UK.”
This new clause would ensure that Parliament is informed of changes in EU and EEA provisions that might have amended UK laws around family-friendly employment rights and gender equality and their potential impact, as well as committing the Government to considering their implementation. This is to ensure that rights of workers and employees with caring responsibilities, and women’s rights, are no less favourable than they would have been had the UK remained a member of the EU or EEA beyond exit day.
Amendment 297, in clause 5, page 3, line 11, leave out “or rule of law”.
This amendment would remove the reference to a rule of law passed or made before exit day.
Amendment 285, page 3, line 12, after “exit day” insert—
“as appointed for the purposes of this section (see subsection (5A)”.
This paving Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.
Amendment 298, page 3, line 15, leave out “or rule of law”.
This amendment would remove the reference to a rule of law passed or made before exit day.
Amendment 299, page 3, line 17, leave out “or rule of law”.
This amendment would remove the reference to a rule of law passed or made before exit day.
Amendment 8, page 3, line 20, leave out subsections (4) and (5).
To allow the Charter of Fundamental rights to continue to apply domestically in the interpretation and application of retained EU law.
Amendment 46, page 3, line 20, leave out subsection (4).
This amendment would remove the exclusion of the Charter of Fundamental Rights from retained EU law.
Amendment 151, page 3, line 26, at end insert—
“(5A) Within three months of the commencement of this section, the Secretary of State must lay before Parliament regulations to create a fundamental right to the protection of personal data.
(5B) A statutory instrument containing regulations under subsection (5A) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”
Clause 5(4) of the Bill excludes the Charter of Fundamental Rights from the ‘incorporation’ powers in the Bill. This amendment would require the Secretary of State to replicate Article 8 of the Charter (the Right to Protection of Personal Data) in UK domestic law within three months of the commencement of Clause 5.
Amendment 286, page 3, line 26, at end insert—
“(5A) The exit day appointed (in accordance with section 14 and paragraph 13 of Schedule 7) for the purposes of this section must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”
This Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.
Clause 5 stand part.
Amendment 10, page 15, line 5, in schedule 1, leave out paragraphs 1 to 3.
To allow challenges to be brought to retained EU law on the grounds that it is in breach of general principles of EU law.
Amendment 101, page 15, line 17, leave out paragraph 2 and insert—
2 (1) Any general principle of EU law will remain part of domestic law on or after exit day if—
(a) it was recognised as a general principle of EU law by the European Court in a case decided before exit day (whether or not as an essential part of the decision in the case);
(b) it was recognised as a general principle of EU law in the EU Treaties immediately before exit day;
(c) it was recognised as a general principle of EU law by any direct EU legislation (as defined in section 3(2) of this Act) operative immediately before exit day; or
(d) it was recognised as a general principle of EU law by an EU directive that was in force immediately before exit day.
(2) Without prejudice to the generality of sub-paragraph (1), the principles set out in Article 191 of the Treaty on the Functioning of the European Union shall be considered to be general principles for the purposes of that sub-paragraph.”
This amendment clarifies that all the existing principles of EU law will be retained within domestic law whether they originate in the case law of the European Court, the EU treaties, direct EU legislation or EU directives. It also makes clear that the key environmental law principles in Article 191 of the Treaty are retained.
Amendment 336, page 15, line 17, leave out paragraphs 2 and 3 and insert—
2A (1) Any general principle of EU law will remain part of domestic law on or after exit day if—
(a) it was recognised as a general principle of EU law by the European Court in a case decided before exit day (whether or not as an essential part of the decision in the case);
(b) it was recognised as a general principle of EU law in the EU Treaties immediately before exit day;
(c) it was recognised as a general principle of EU law by any direct EU legislation (as defined in section 3(2) of this Act) operative immediately before exit day; or
(d) it was recognised as a general principle of EU law by an EU directive that was in force immediately before exit day.
2B Without prejudice to the generality of paragraph 2A, the principles set out in Article 191 of the Treaty on the Functioning of the European Union shall be considered to be general principles for the purposes of that paragraph.
2C For the purposes of paragraphs 1A and 1B the exit day appointed must be the same day as is appointed for section 5(1) of this Act and must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”
This amendment would retain the existing principles of EU law within domestic law whether they originate in the case law of the European Court, the EU treaties, direct EU legislation or EU directives. The freeze date would be at the end of any transitional arrangements.
Amendment 105, page 15, line 21, leave out paragraph 3.
This amendment leave out paragraph 3, thus retaining the right of action in domestic law in relation to general principles of EU law.
Amendment 62, page 15, line 28, leave out paragraph 4.
This amendment would remove the proposal to end rights in UK domestic law after exit day in relation to damages in accordance with the rule in Francovich.
Amendment 139, page 15, line 29, at end insert—
“except in relation to anything occurring before that day”.
This amendment, together with Amendments 140 and 141, would restore the right to obtain damages after exit day in respect of governmental failures before exit day to comply with European Union obligations.
Amendment 302, page 15, line 29, at end insert—
“except in relation to anything occurring before that day.
(2) “Anything occurring before that day” in sub-paragraph (1) shall be taken to mean any action commenced before or after exit day in relation to any act before exit day.”
This amendment would enable actions to be brought under the Francovich rule either before or after exit day if they related to an act before exit day.
Amendment 335, page 15, line 29, at end insert—
“, except in cases whereby the breach of Community law took place on or before exit day.
4A For the purposes of paragraph 4 the exit day appointed must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”
This amendment ensures that the right to obtain damages if the Government fails to uphold its obligations continues as long as the UK remains under the existing structure of rules and regulation.
Amendment 126, page 15, line 32, after “Rights” insert “or”.
This amendment is consequential on Amendment 62.
Amendment 127, page 15, line 33, leave out
“or the rule in Francovich”.
This amendment is consequential on Amendment 62.
Schedule 1 stand part.
The amendments in this group have a number of things in common, and they relate largely to the rights and freedoms that many of our citizens enjoy, without debate or discussion—they are sometimes taken for granted—but that could well be threatened if we do not get this legislative process right.
Of course, the Bill was supposed to be merely a “copy and paste” piece of legislation. We were told that there were no fundamental changes in Government policy and that it was all very straightforward. The Government said, “We are leaving the European Union and becoming a freestanding United Kingdom, so we will simply cut and paste all the EU regulations and laws as they stand into UK law.” However, you will notice, Mrs Laing, particularly in schedule 1, that a number of the proposed changes are not to be transposed. The Government have specifically chosen not to bring across the charter of fundamental rights.
When I was sitting in the hon. Gentleman’s place, Labour Ministers told us that the charter would have no more influence in the United Kingdom than a copy of “The Beano”—those were the words used—because it would not apply here. Does he not look forward to a time when what Labour Ministers say will bear a greater approximation to truth?
It turns out that the charter does have value, and it certainly does have effect within the UK. I will shortly give some practical examples to show how we cannot simply airbrush this part of our current legislative framework. Many citizens, companies and organisations recognise the value that the charter brings.
Is not an example of the use of the charter of fundamental rights the one given by our right hon. and learned Friend Keir Starmer when he referred to the case that the EU brought against the Government, in which the current Secretary of State for Exiting the European Union, as part of his argument, prayed in aid the charter. If the Secretary of State thinks that it has use, should not that same use be available to everybody else?
Indeed. My right hon. Friend has stolen the punchline that I was building up to, because that is the one example that I thought would surely clinch the argument. Of all the people who really should value the charter of fundamental rights, surely it is the Secretary of State.
Given that the charter has been part of British law for some years now, the case for repealing it must be based on some harm that it has done. I have never heard anyone describe any harm that the charter is supposed to have done to any public interest in this country, so presumably the hon. Gentleman, like me, awaits some examples to justify the proposed change.
Absolutely. We might hear a different argument from Ministers, but traditionally the Government’s argument has been, “Don’t worry about the charter of fundamental rights; it doesn’t have any effect, it isn’t necessary and we can do without it because it is already there in British law.” It is rather like what Sir Desmond Swayne said in his intervention. Of course, if that is the case, why are the Government deliberately excising it from UK law, and why would they resist new clause 16? The new clause does not even require the charter to be retained—I happen to think that it should be retained—but simply states that Her Majesty’s Government should lay before Parliament within one month of Royal Assent a review of the implications of removing it.
Does my hon. Friend agree that one advantage of the new clause is that we could explore properly the impact of losing the access that the charter gives to UN conventions, for example on the rights of persons with disabilities and on the rights of the child, which currently are not fully incorporated into UK law? We will therefore lose the way in which they are currently accessible through the charter.
Indeed. We need a far more detailed analysis from Ministers of the consequences of deleting the charter of fundamental rights, which are potentially myriad and far ranging. I pay tribute to my hon. Friend for her tireless campaigning on children’s rights. She has tabled several amendments in relation to the UN convention on the rights of the child, and she will know that many non-governmental organisations that campaign for children’s rights, the Children’s Society in particular, have several anxieties about the deletion of the charter of fundamental rights and the lack of clarity that would exist around protecting children, who are sometimes in vulnerable circumstances.
When children in the world are still subject to slave labour or trafficking or are working as child soldiers, does my hon. Friend agree that the message being sent that the UK would simply do away with rights that we campaigned for, which led to the charter of fundamental rights, is an abhorrence? We need Ministers to come to the Dispatch Box and say that they have changed their mind.
People will have many legitimate anxieties. We cannot simply erase a provision that currently has legal effect and provides legal protections without a statement from Ministers about the effect that that could have in law.
One of the most fundamental questions is the notion of disapplying Acts of Parliament and the supremacy that the European Court of Justice asserts over our parliamentary Acts, which the amendments would effectively transfer to the Supreme Court. As for child protection, I was in part responsible for the Protection of Children Act 1978 and I presented the International Development (Gender Equality) Act 2014, which are intrinsic Westminster Acts. We do not need the charter to do such things; we can do them ourselves.
In no way would I wish to diminish the hon. Gentleman’s contribution to child protection and ensuring that legislation is as good as it possibly can be, but we currently have that extra level of protection that the charter of fundamental rights provides. New clause 16 simply asks for an analysis from Ministers of what would happen to child protection and to many other rights if we delete the charter from our current set of legal protections.
Does my hon. Friend agree that this is about not just the application of the charter of fundamental rights in British law, but the message that we send to the rest of the world? That goes to the heart of the problem with the so-called British Bill of Rights. There are no British rights; there are universal human rights. That is the message that this Government and our continent should send to the rest of the world and to places where people do not enjoy those human rights, which should be inalienable.
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.
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.
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.
As an old lawyer who enjoyed jurisprudence, I know that our laws and rights come from many different sources. I am an old common lawyer, so I actually do not like stuff being written down too much; I like things to develop over time. I would really need persuading about new clause 16, because it just asks for a report, which seems awfully wet.
I was trying my best to offer a hand of friendship across the Chamber and to say, “Let’s meet halfway and find a way of forging a consensus.” If the right hon. Lady wishes, there are other amendments today that ask for the charter of fundamental rights to be kept. I will certainly be voting for those, but she obviously knows that I would like to find a way, in the spirit of compromise, of reaching a consensus. I agree that a report is only a small step in that direction—hence the drafting of new clause 16—but I am massively impressed by her strength and commitment to the protection of rights in our country.
One of the differences between the charter of fundamental rights and the European convention on human rights lies in article 8 of the charter, which relates to the protection of personal data. Is it not a particular irony that the Secretary of State for Exiting the European Union relied on precisely that provision to sue the British Government?
It is probably time to elaborate on that example, because the Secretary of State—for it is he—sued the then Home Secretary, who hon. Members will know is now Prime Minister, to challenge the Data Retention and Investigatory Powers Act 2014 as being inconsistent with EU law. The Secretary of State himself used the argument in court that the charter of fundamental rights needed to be prayed in aid in that case. By the way, he was successful at that point in time.
As a Government lawyer at the time, I was honoured to present that case on behalf of the Government. My real worry about bringing the charter of fundamental rights into English law is that it is too complicated and does not add sufficient rights. Everybody in the House is in favour of the rights in the European convention on human rights that have been incorporated into English law. We are very keen on those and want to protect human rights, but we do not feel that the charter adds sufficient rights to take us much further, and we found that in an enormous number of arguments during that court case.
I have no reason to question the hon. Lady’s capabilities in court, and I am in no way saying that she was a loser in that particular case, but the charter is not complicated. The rights are simple and clear. For example, “Dignity” covers the right to life and to freedom from torture, slavery, the death penalty, eugenic practices and human cloning. “Freedoms” covers liberty, personal integrity, privacy, protection of personal data, marriage, thought, religion, expression, assembly, education, work, property and asylum. Other freedoms relating to “Equality” include the prohibition of all discrimination, including on basis of disability, age and sexual orientation, cultural, religious and linguistic diversity. “Solidarity” includes the right to fair working conditions, and protection against unjustified dismissal. Other rights include “Citizen’s Rights” and matters relating to “Justice”. Those are simple, important rights.
I agree with Anna Soubry that we need more than a report; the rights should be enshrined. On article 25 and the rights of older people, does my hon. Friend agree that having limited protections for older people at a time when so many older people need, but cannot get, things such as social care means that we need to enshrine those rights?
My hon. Friend is correct. While we have powers on the statute and while rights accrue from case law and court conclusions, the charter of fundamental rights fills many of the gaps, particularly in certain circumstances.
I will give way to my right hon. Friend in a moment, because he has a great amendment relating to data, but I want to give an example relating to the protection of public health. The tobacco manufacturers sought to challenge the Government’s introduction of plain packaging for cigarettes—of course the tobacco manufacturers hated the idea and wanted to stop it—and the Government, in defence of that legislation, prayed in aid of their case the charter of fundamental rights and its protections for public health. The courts therefore upheld the UK’s plain packaging arrangements and legislation based on the protections of public health rights laid out in the charter. That is a very specific example of how the charter has benefited the rights and protections of our citizens in this country.
I thank my hon. Friend for his kind reference to my amendment 151. Going back to the case brought by the now Secretary of State for Exiting the European Union, does my hon. Friend agree that, if the Secretary of State had not been able to rely on article 8, the likelihood is that he would not have won his case and that Victoria Prentis would have won for the Government? Does that not give the lie to the suggestion that the charter has no impact?
Victoria Prentis suggested that the charter of fundamental rights contains rights too complicated to be incorporated into English law. Will Mr Leslie reassure her that those rights have been incorporated into Scots law, which is a separate legal system, and into all the legal systems of the other member states of the European Union? In fact, it is not too complicated to incorporate the rights into English law.
My point is not that we do not approve of the rights, nor that we thought it was not possible to make the case without the charter, but that the charter has been part of English law since the Lisbon treaty. As good, responsible lawyers, whether acting for the Government or for anybody else, of course we use whatever tools are available to us, which in recent times have included the charter.
My point is that we do not need the provisions of the charter. It is true that it can be argued the charter can do one or two more tiny things, such as widening the class, making what we can get back greater and possibly widening the possibilities for claimants, but my case is that it is possible to do what we need to do to protect people’s human rights within the law as we have it in this country.
I hear the hon. Lady’s case that somehow the charter is not necessary, which is very much the case that Ministers have made in the past, but she has conceded that there are differences that the charter can apply. She characterises those differences as very small and minuscule, but what she perceives as small or minuscule rights are not necessarily small or minuscule rights to our constituents, to members of the public or to the most vulnerable in society, who may depend on the very rights provided by the charter in crucial circumstances.
Does the hon. Gentleman find it odd that we are transposing all EU law into our own law while taking away the thing that underpins all EU law? We are taking away the fundamentals and foundations of the body of EU law. Is that not an odd way of going about things?
I agree. I find it odd that Ministers are saying that, somehow, the charter does not matter but are then saying that we must delete the charter in the Bill. They would almost die in a ditch to defend clause 5(4), which simply says:
“The Charter of Fundamental Rights is not part of domestic law on or after exit day.”
If the charter is so benign and so irrelevant, why not have the report? It may be tedious to some, but the report is necessary to explain whether those rights do or do not offer protections. If the charter is so ineffectual, and if this is supposed to be a copy-and-paste exercise to transpose EU law, I do not see the argument for deleting the charter.
Has the hon. Gentleman paid attention to protocol 30? Article 1(2) states:
“In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.”
The whole point of the charter of fundamental rights, subject to the protocol, is that it does not apply in our national law.
I am not quite sure that is the interpretation of the courts, which have referenced the charter of fundamental rights in a number of cases. If the hon. Gentleman listens to the case that my right hon. Friend Stephen Timms will make in respect of amendment 151, on the free flow of data across borders and on the protections we have, he will hear how the very backbone of our data protection laws, which go alongside the general data protection regulations, is represented in the charter of fundamental rights. It is not me making the case; it is techUK, the trade bodies and the organisations that campaign and fight to protect data and privacy rights. Many organisations and non-governmental organisations will be bombarding the inboxes of Conservative Members as we speak about those protections.
I want to make a little more progress, if I may, because I need to reference a number of other amendments.
I hope this is not the case, but it seems to me that the Prime Minister, worried that hard-line Eurosceptics and Brexiteers on her Benches are champing and nipping at her heels, had to throw them a bone. There was a need to give them something, and therefore the charter of fundamental rights was the scalp she felt she had to throw in the direction of some, but not all, Conservative Members. I hope that is not the case, because significant protections on data, on children’s rights and on public health—even the protections that the Secretary of State for Exiting the European Union himself has used—are rights and privileges that we should jealously guard. It is our job in this Parliament to stand up and point out when the Executive are potentially trying to erode many of those rights. I hope we can keep the charter or, at the very least, have a report on its effect.
Amendment 62 also addresses changes in rights. This is not a pure copy-and-paste exercise, and the amendment seeks to preserve something known as the Francovich rule in our legal system. Essentially, it is a fundamental principle of any democracy that Governments should not be above the law. In EU law, the principle is made real by the Francovich rule, which was established by case law that provides citizens with tools to recover damages when their Government fall short of legal obligations. In this case, again, the Government are trying to do away with those protections, and I tabled the amendment—other hon. Members have tabled similar amendments—to probe the Government and to find out what will be the effect of removing the Francovich protection.
The recent prosecutions of the Government under clean air laws, for example, might not have been possible if the Francovich duty were not enshrined in law. The result of the Bill, as drafted, is that, the day before Brexit, people will have the right to claim damages from the Government for the harm they suffer, but there is a danger they will not have that right the day after Brexit.
My hon. Friend makes the point well. We can all imagine circumstances in which the Government could be in part responsible for failures to comply with various legal obligations—as she says, it might well include failure to comply with air quality directives—and those who suffer harm as a consequence of those Government failures may no longer have the right of redress. Those rights exist not only in environmental legislation but in, for instance, equal opportunities legislation. I can foresee circumstances in which a same-sex couple seek retroactively to claim their right to pension arrangements that might not have existed in the past so that they can accrue their pension rights, but they would not have redress to do so under the proposed arrangements.
The other big one is competition law, which relies very much on the right to challenge the Government, particularly on procurement arrangements. Companies that say they did not get a contract for such and such a reason may well feel that it was partly because they were unfairly treated by Government. Under the Francovich arrangements we have protections so that contracts can be let fairly, be it for house building, transport infrastructure or anything else we can name. A number of protections need safeguarding there.
Perhaps the biggest one that has not been addressed by Ministers and where Francovich may still be required is the protection of the rights of EU nationals after Brexit. A number of EU nationals will continue to reside in the UK after Brexit, but what will happen if their residency rights or definitions change, if their children are affected by changes of arrangements with the Government, or if rights to claim various tax reliefs or other things change in an unfair way for them, as EU nationals? There should be some level of redress against malfeasance by Government in that respect, so at the very least we need to hear from Ministers a better justification for the deletion of this Francovich protection.
My hon. Friend is making some excellent points. His amendment on Francovich echoes my own, although mine is slightly different on time limitation. Does he agree it is unthinkable that a Government who throughout this Bill have said, “All rights and protections would be guaranteed” are now seeking to remove the ability to sue the state for imperfect administration, mostly of directives, at a time when they are about to incorporate hundreds if not thousands of pieces of EU law into our UK law? They are saying, “If anything goes wrong with any of that, you’ve got no right to sue us in the future.”
My hon. Friend is correct about that and she has tabled a very good amendment on this issue. Ministers need to do better and explain why they would seek to wrench out of the protections for our citizens this potential right-to-redress arrangement, particularly as it may well affect malfeasances and the need for redress that takes place before exit day. This is not just saying that this rule will not apply to situations that occur after exit day; its drafting would prevent that right to redress, even if the claim itself relates to an occasion prior to exit day. All hon. Members, regardless of political party, should therefore think of their constituents, the cases we pick up and the surgery discussions we have with people who ask what they can do. The Government are a large and powerful organisation—many Conservative Members often make that point about the size and power of the state—and individuals need rights in order to protect themselves in some of those circumstances. This is something that really should transcend the normal party political issues.
As the hon. Gentleman will know, the threshold for claiming damages under Francovich is that the breach needs to be “sufficiently serious”, which is a principle stemming from EU jurisprudence and case law from the European Court of Justice. Is his position that claims will be interpreted under UK law even in the event of a lack of provision of “sufficiently serious” in UK statute, or is it that UK courts would be applying ECJ jurisprudence in that event?
Would it not be great if we were having a proper debate about retaining Francovich protections, albeit possibly making an amendment? The hon. Lady may well have a case for increasing or decreasing the level of the damage thresholds in place, but that is not what we are debating; we are debating simply the deletion of this Francovich protection—that right to redress—from our laws and protections. I would be happy to discuss with her where that level should be set, as there is a debate to be had about that, but we are talking about the principle, yes or no, and whether this should be retained within this legislation.
My hon. Friend rightly suspects that the Government will say that the charter from the UK will not affect the substantive rights that individuals already benefit from in this country. Does he agree that the problem is that the Government do not go on to say what those substantive rights are? If we simply leave it to the common law, a future Parliament—it may not be this one—could determine that it is right to erode those rights. That is why it is important we stick with the charter.
We need to make sure that if we are transposing legislation, it is a true copy and paste, but that is not what has been proposed. I am not in favour necessarily of cutting off our relationship with the single market or the customs union. There are a lot of debates on the Brexit choices we have before us, but here we are dealing with a set of separate discussions about the rights that our citizens—our constituents—could have in a post-Brexit scenario, and we need a better justification in order to be convinced than that we should just throw these overboard at this stage.
I hope this will be a more helpful intervention. The hon. Gentleman is making a good point. The point about Francovich is that we will not be able to have a claim arising from a directive that we have accepted into substantive British law, because we will have left the European Union, and that is simply not fair. People would have had a claim but we will have left, so someone who sought to make that claim afterwards will not be able to do so. It is right that we will not be subjected to any new directives, so people could not raise them, but it is bad to take away a right that people would have had as we had accepted the directive into substantive law. That is the point here.
Yes, the right hon. Lady makes a good argument about how we are transposing certain bits of European legislation into UK law but not necessarily the protections to go alongside them. That is the point we need an explanation on. Why not bring those with us?
I have been listening carefully to the hon. Gentleman’s argument on transposing the charter of fundamental rights into British law. Is it his case that it should be transposed as a cut and paste or that it should be adapted? Article 39 talks about the right to stand for the European Parliament, article 44 talks about the right to petition the European Parliament and article 45 talks about freedom of movement, all of which would presumably no longer be relevant after we leave the EU.
I have been in Parliament since 1997, on and off, and I find that amendments can often be rebutted for a number of reasons but when people say there is a technical deficiency that tends to be the last refuge of the Minister. There may well be arguments that say that we need to cut and paste the charter of fundamental rights or the Francovich provisions, but to do so having regard to changes in the language to take account of new circumstances. Everybody can recognise the need for consequential or supplemental amendments to the legislation sometimes, but let us not kid ourselves: we are talking about some far bigger principles here. I hope the hon. Gentleman would not diminish the importance of the charter of fundamental rights and those myriad legal rights and protections we have that are so essential for the specific and general reasons I have given in this debate.
I am in violent agreement with Anna Soubry on the issue of Francovich, and I will be speaking to those points in more detail when I come to talk to my amendment. Does my hon. Friend share my concerns that certain rights in the charter such as environmental rights, consumer rights and the rights of the elderly in particular, which are not highly developed in UK case law or in any other sort of legislation, are gently being thrown out with the bathwater in this removal of the charter of fundamental rights?
That is an exceptionally important point. Our legal system is one of the finest in the world. It is a dynamic legal system and is not simply reliant on statute; it can relate to cases as they evolve. The charter of fundamental rights, which could equally be a charter within the UK law, according to this Bill, if it were transposed, could help to maintain that dynamism and the protection of rights to fill the gaps when those unforeseen circumstances arise. We do not know what issues our constituents will bring to us from one week to the next, but we may well have a constituent who has found that their rights have been deprived unfairly and who needs redress to protect them from the Government or others. In our surgeries and discussions, what will we say to our constituents in such circumstances? What will we say when they say, “But you had the opportunity to transpose and retain the protections under the charter of fundamental rights.”? Will we say “Oh, well, it was a very busy day. I didn’t really notice what was going on in the Chamber. There were lots of complex things going on to do with Brexit.”?
This really matters. I am delighted and proud that many Members from all parties in this House are voicing their concerns and are not prepared to see these rights just swept away on a ministerial say-so.
It is a great pleasure to follow Mr Leslie. If I may say so, I do not take the view of my right hon. Friend Anna Soubry in her description of new clause 16. It seems to me that in tabling it for consideration by the Committee the hon. Gentleman has accurately sought to stimulate an extremely important debate on the consequences of getting rid of the charter.
I sometimes feel that there is perhaps a failure of some Members to look at what has been happening in our society and country over a 40-year period. On the whole, western democracies have tended in that time to develop the idea of rights. I know that for some Members that appears to be anathema—it makes them choke over the cornflakes—but it is a development that I have always welcomed and that, it seems to me, has delivered substantial benefits for all members of our society, particularly the most vulnerable.
In this country we have had a long debate about how we reconcile rights with the doctrine of parliamentary sovereignty. Indeed, in 1997 the Labour Government sought to craft—extremely ingeniously, I thought, which is why I was very supportive of it at the time—the legislation that would become the Human Rights Act in an effort to achieve that reconciliation. I think most people in this House would argue that that Act has worked very well by preserving parliamentary sovereignty for primary legislation, enabling secondary legislation to be struck down if incompatible and with the mechanism of a declaration of incompatibility when required.
The truth is that because of our membership of the European Union there are some things that many of us would regard as rights but which fall outside the scope of the Human Rights Act and the European convention, and those things have developed over the same period I mentioned as a result of our European Union membership. I appreciate that that leads to double choking over the cornflakes, because not only have those rights come from what some people might regard as a tainted source—although I am blowed if I can think why: it is just another international treaty—but on top of that is the fact that once in place the charter has no regard for our parliamentary sovereignty. It has the capacity to trump our domestic laws if there is an incompatibility between our domestically enacted laws and the principles of, or anything that has come from, the charter. That is part of the supremacy of EU law to which we have all been subject.
All that should not make us ignore the benefits that the charter of fundamental rights has conferred. Whatever we may think as we talk about parliamentary sovereignty, I venture the suggestion that if one goes out into the street and asks people whether they think that equality law, which is largely EU-derived, has been of value to this country, most people would give a resounding note of approval. I am sure they would do the same with respect to the recent Benkharbouche case in relation to the disapplication of the State Immunity Act 1978 for the purposes of enabling an employment case to be brought against an embassy that had mistreated one of its employees. Of course, as has been cited, the Secretary of State for Exiting the European Union, my right hon. Friend Mr Davis has availed himself of the provisions of the charter and the rights that the EU has conferred in relation to questions of data privacy and the way data is handled.
Is the right hon. and learned Gentleman also aware of the simple rights that many of us will have used on behalf of a parent, such as the right to wheelchair accessibility at our airports? There are also rights that came up in the course of the youth justice review I did for the Government, to do with making courts child-friendly so that, for example, they do not intimidate a young woman having to relay a terrible case of sexual assault. Such rights did not exist in British law but now exist as a result of the charter. For that reason, we ought to give due respect to our European friends for giving us the charter.
I place great respect on the fact that, for all the faults I can sometimes identify, when the European Union was founded its founding fathers wished it to be based on principles not only of the rule of law but of a vision of human society of which I have no difficulty approving.
I will just make a little progress.
I do not have any problem with that vision at all. It worries me that, in the course of this debate on Brexit and our departure from the European Union, in this massive upheaval of venom about the EU that I have experienced personally in the past week, which seems to have no relation to reality at all and troubles me very much, we seem to be at risk of losing sight of these aspects of real progress within our society as a result of our EU membership. They are overlooked.
I have listened to my right hon. and learned Friend with great care and interest. Will he explain why the matters to which he and Mr Lammy have just referred could not be enacted? In fact, they often are enacted; I referred to the Protection of Children Act 1978, the International Development (Gender Equality) Act 2014 and so forth. Does he not understand that it is terribly important to remember that implicit in the charter—as a distinguished lawyer, he knows this—is the power of the European Court to disapply Supreme Court enactments? The Factortame case was a good example of that in respect of the Merchant Shipping Act 1988.
I thought Factortame would come along at some point in this debate. My hon. Friend is of course right about that. I know that he has spent most of his career in this House agonising over the issue of the loss or diminution of parliamentary sovereignty. That is not a matter to be neglected, and if he will wait just a moment I shall come to that point.
As I said, by raising the points he has through tabling new clause 16, the hon. Member for Nottingham East has done the right thing, because we need to focus on what is going to happen after we have left the EU. Of course my hon. Friend Sir William Cash is correct: the laws that we have enacted, as at the date of exit, as a consequence of our EU membership and the requirement for us to adhere to the charter, will remain in place, but it is interesting that they will thereafter be wholly unprotected. For example, they will not even enjoy the special protection that we crafted in the Human Rights Act for other areas deemed to be of importance.
One solution may be that, in due course, we ought to think carefully about whether there are other categories of rights additional to the European convention on human rights—heaven knows we have been here before—that ought to enjoy the sort of protection that the Human Rights Act affords other rights. That might well be the way forward. I agree with my hon. Friend that it is slightly strange that, in leaving the EU for national sovereignty reasons, we should then say that we will continue to entrench certain categories of rights protected in the charter and give them a status even higher than, for example, prohibiting torture under the ECHR. That might strike people as rather odd. On that basis, I am forced to conclude that, if we are leaving the EU, as we intend to do, the sort of entrenchment that has previously existed is not sustainable. We will have to come back to this House to consider how we move forward, but, in saying that, I think that this is a very big issue indeed.
It worries me that, when we leave in March 2019, there will be a hiatus. There will be a gap where areas of law that matter to people are not protected in any way at all. It is no surprise, therefore, that non-governmental organisations have been bombarding MPs with their anxiety. I think that that anxiety is misplaced, because I cannot believe that any Member on the Treasury Front Bench intends to diminish existing rights. However, we are in danger from two things. One is sclerosis—that the rights development will cease. Secondly, because those rights do not enjoy any form of special status—many, not necessarily all, should certainly do so—there will be occasions when we nibble away at them and then discover that they have been lost. For that reason, it is a really urgent issue for consideration by this House, preferably before or shortly after we leave.
My right hon. and learned Friend and former pupil master is making a speech with his characteristic intellectual honesty. Nothing passes him by. In that spirit, does he agree that the charter is not really the solution to incorporating the rights that so many of us want to see incorporated, such as the new views of sexuality and children’s rights? Possibly the way forward is not to vote for this amendment, but to continue to put pressure on those on the Treasury Bench to ensure that those rights are protected in a modern and suitable way for the current world.
My hon. Friend makes a good point. As has been pointed out, this amendment just asks for a report, which means it is trying to concentrate minds on an issue. In our debate last week, one point that I made on my new clause 55, which is still hanging over the Treasury Bench like the sword of Damocles, is that there may be some ways in which we can provide—even now as we leave, as a temporary measure before we can return to the issue—some greater reassurance on the protection of key rights in the fields of equality. I strongly recommend that my hon and right hon. Friends pay some attention to that, because the issue will not go away. If we do not seek to act on it, the idea of a modern Conservative party starts to fray at the edges, and I do not wish my party to gain a reputation for ignoring these key issues.
Might I use as an example very cash-strapped services, which might not naturally wish to be extending the rights and the costs of services? For example, in the aged care sector, a couple who traditionally had to be split up due to the needs of one or other of them can, under European rights, remain as a couple. We can imagine that, in a time of cash-strapped services, that sort of right might not necessarily fall into the lap of service users.
The hon. Lady makes a valid point, but it is worth bearing in mind that that is covered by the Human Rights Act and the ECHR, so let us not get too worried. We must also face up to the fact that some socio-economic rights that require levels of cost and economic policy decisions are legitimate areas in which Parliament and Government can say that, however ideal they might be, a balance must be struck. That is why I am always careful—this probably marks me out as a Conservative—about the infinite extension of rights, because thereby we dilute their importance. That is very important to bear in mind.
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.
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.
I just want to make sure that I understand what my right hon. and learned Friend is suggesting. Are there some items in the charter, which are not going to be retained through the retention principles of the Bill, but which should be retained in the form effectively of becoming an amendment to the HRA, so that they are subject to the HRA’s protections?
That could be a solution, but even if we do not have time to move to that and to have the necessary debate—as we highlighted in the question about the statutory instrument powers that the Government are taking to change law—some comfort and reassurance might be provided with the fact that there are some categories of EU-derived law that could do with at least the assurance that they would require primary legislation to change them. That might go some way to providing reassurance to some of the perfectly worthy organisations that have been writing to us that there is no malevolent intent towards this important area in which rights have developed.
The general principles of European law do not cover the principles of environmental law. That was made clear to us in terms from that Dispatch Box last week. The charter does guarantee those environmental rights. Does the right hon. and learned Gentleman agree that environmental principles are one area in which this Bill is deficient and in which our rights will be lost?
I just want to follow what my right hon. and learned Friend was saying a moment ago, because it seemed to be a very useful suggestion. Is he saying that, as part of what he and I sometimes call the triage process, certain items that are classed as rights could be subject to primary legislation in full for amendment, whereas others, which are important but not rights, might be subject to the affirmative resolution procedure and others, which are technical, will be left over for the negative resolution procedure?
My right hon. and learned Friend is making a typically thoughtful and deeply considered speech. On a point of clarification, would it be right to say that there are, effectively, three different categories in the charter of fundamental rights? There are those rights that, as I indicated earlier, do not make a lot of sense in transposition, such as the right to petition the European Parliament. There are those rights that are already covered by the Human Rights Act, such as the right to life and the right to property. However, there is a third category of rights, such as that in article 41, that are not covered by our own jurisprudence and legal system, and they might usefully be so in due course.
Some of these rights are going to be incorporated in different statutes. For example, there is going to be an environment Act, which will create a new regulator and, we hope, protect those rights. Is the present proposal not a very broad brush, which is ill fitted to dealing with these rather detailed matters? Can my right and learned hon. Friend give us some reassurance that the Supreme Court judges will not be left dealing with more legal uncertainty, rather than less, because they will have to adjudicate between two different rights regimes—one that is directly applicable from our own statute, and the other where they may have to declare an incompatibility with European convention rights? How will that diminish legal uncertainty, which is what the Supreme Court judges are looking for?
If I understand my hon. Friend’s question, it goes to the point I made a moment ago, which was that it ought to be possible to consider whether some of these rights should be incorporated in a Bill of Rights that provides equivalent protection to that currently provided in the Human Rights Act. I think it is possible to distinguish between what matters and what does not. I am not suggesting that all environmental law would have to enjoy that protection, but I think it is possible, and an exercise that this House and the Government will have to carry out—the pressure will build for this—to give this issue some consideration. Equally, the House may decide that it is not concerned about some categories of rights and that it just wants to stick to things such as equality, data privacy and children’s rights. We will need to debate that.
No, I do not think it will create uncertainty, any more than the Human Rights Act has created uncertainty. I have to say to my hon. Friend that I do not think that that is an issue. However, as I say, I do accept that it will take time to draft and debate these things, and it is not in this current forum that we will be able to achieve that.
On the point my right hon. and learned Friend is making, I think I am in complete agreement with him. It is right for this place to consider, debate and legislate on these issues, because this is the right forum for doing that, rather than by implementing a whole slew of rights, which would then be entirely in the hands of the courts.
Yes, and there we are in agreement. It is inevitable and regrettable that we face this situation, but that is why simply to convert the charter, which, in any case, has lots in it that is unconvertible, and to say that it should maintain entrenched rights, seems to me, in the light of what we are debating in the context of Brexit, to be an impossibility. That is not something that commends itself to me.
Let me now move to a slightly narrower issue. We have to accept that, in the course of what we are doing, we are going through a complex period of transition. Forget about the transitional arrangements we may be negotiating with our EU partners—the truth is that we are creating a whole category of transitional law. By the concept of retained EU law, we are doing some very strange things indeed with our ordinary legal principles.
Clause 5(2) allows EU law to have priority over domestic law in certain circumstances. In fact, it allows for the possibility of UK law enacted prior to exit day being quashed for incompatibility with EU law that is retained on exit day. I simply make the point that, leaving aside our EU membership, which of course will have ceased, this is an utterly unique development in our legal system—it has never happened before. We are about to create a species of domestic or semi-domestic law—I would not quite describe it as feral law—which will have the unique quality of being able to override our own laws. Clause 6(3) will also allow CJEU judgments given before exit day to be binding, but not on our Supreme Court—a matter that my right hon. Friend Sir Oliver Letwin and I have been worrying about quite a lot in the course of the passage of this legislation.
So although the CJEU will rightly lose jurisdiction, it and EU law will keep a special status. However, that is intended to be only temporary, although how temporary is speculative, and I of course note clause 5(3), which says that this law can be modified and still retain this special status, as long as the modification, I assume, is not so dramatic or drastic that it is made explicit that it should lose it. That is different from replacement. That, I suspect, is because the Government know very well that this situation may continue for decades to come.
Yet, in the middle of that, the charter is removed. Leaving aside the other issues concerning the charter, which I have touched on, and which I do not want to go back over, that creates an unusual circumstance. EU law was always intended to be purposive, and one of the purposes is to give effect to the fundamental principles under which the EU is supposed to operate. Yet we are removing the benchmark under which this law is supposed to operate, because the charter will no longer be there, although, interestingly—I think this is an acknowledgment by the Government of the problem they have—they have then, in the next clauses, essentially allowed the charter and general principles of EU law to continue to be used for the purposes of interpretation.
It is very unclear how all this, in practice, is going to work out. That is why I tabled my two principal amendments. Amendment 8 would allow the retention of the charter. It provides an easy route to ensuring that this legal framework is retained, but for the reasons we have just been debating, there are serious issues surrounding it, which is why I think it is probably wrong to pursue it.
However, there is then the question in schedule 1 of what we do with general principles of EU law. What they are is totally undefined, but I assume—I have to assume—that if the Government are content to articulate the existence of general principles, they have done enough research to establish to their own satisfaction that general principles do exist—they are the result of court judgments interpreting the law and, indeed, the fundamental principles in the charter, but not the ones that are going to disappear on the day we leave.
Is not the important point about clause 5 that any future Act of this Parliament takes supremacy, so if there is a muddle or a problem, this Parliament can sort it out definitively? I should have thought that that would deal with the interests of all parties concerned.
My right hon. Friend almost makes my case for me. He is absolutely right that, in so far as we want to depart from anything, this House, once we have left the EU, can do what it likes, and as regards anything we enact thereafter, the supremacy of EU law is entirely removed. We can do exactly what we please, except, I am afraid, in so far as we may find ourselves still locked into trying to maintain comity with the EU when the penny drops about the economic consequences of not having it. However, I will refrain from straying too far into that area.
So the question is: is there some merit in keeping the right to bring a challenge using general principles of EU law? I would have thought that there is. I tried to work through in my mind the importance of this. First, we may have retained EU law that is deficient, defective or does not operate properly, or a court might be forced to conclude that it operates in a capricious or even unfair manner, or is disproportionate. At the moment, the only remedy for the court, unless it can bring in the Human Rights Act, will be to apply the law and somebody points out to a Minister that that law is working very badly.
In my right hon and learned Friend’s observations about schedule 1, paragraph 3(2), is he referring to retained general principles of EU law or to new ones post Brexit? If he is talking about the retained ones, I have a great deal of sympathy with his position, whereas importing rights of challenge that rely on later developments of EU law would be quite against the principle of Brexit.
My right hon. Friend is absolutely right and we are completely of one mind on this. I am talking about retained principles—the principles that were seen to exist at the date of exit.
I am delighted, though not surprised, that my right hon. and learned Friend and I are thinking alike on this, as we have thought alike on many of these issues. Does he think, in that case, that his amendment 10 ought to be recast when, as I hope, it appears as a Government amendment on Report, so as not to remove paragraph 3 but to say, instead of “general principles”, “retained general principles”, with similar consequential adjustments?
I am grateful to my right hon. Friend for his intervention. As I have said on many previous occasions, whatever merits I may have as a lawyer, I am not a parliamentary draftsman. On top of that, I gently point out that, in an effort to get my amendments in early, they were, in the usual way, drafted with a wet towel around my head at about 30 minutes past midnight on the night before Second Reading. I am therefore quite sure that they are all capable of substantial improvement. Indeed, in my experience, it is very unusual for an amendment ever to be accepted just like that, apart from when it adds a comma, particularly in Committee.
Yes, of course there are different ways in which this can be approached. Indeed, my hon. and learned Friend the Solicitor General, with whom I have had an opportunity for a bit of a chat—I shall look forward to talking to him further about this—has made it clear that he thinks I have been a bit too draconian in deleting paragraphs 1, 2 and 3. On the other hand, there are some other things in paragraphs 1, 2 and 3 that I find rather concerning. However, I shall confine myself to paragraph 3 for the moment.
On whether the drafting is entirely right, so far, as far as I am aware, the Government have had absolutely no answer to the extremely clear case that my right hon. and learned Friend has made about the proper way to protect these cases in future. The obvious thing is for the Government to accept these amendments today, because they can come back on Report and start correcting and redrafting amendments to which I am sure that he will be wholly receptive. What I would not welcome is some vague assurances from Front Benchers that they will think about it and then might come back with something on Report. The drafting can be corrected later; the points that he is making need to be confirmed today.
My right hon. and learned Friend makes a very good point. He highlights the difficulty faced by all Back Benchers, particularly Government Back Benchers, in presenting amendments—namely, the extent to which they should accept assurances from Front Benchers. That largely depends on how detailed the assurance is—whether it is woolly and vague or has some specificity to it. My judgment on whether I might press amendment 10 to the vote will depend on how specific Front Benchers can be in providing an assurance that they recognise that, even if there may be areas that remain to be debated, there is a core issue that must be addressed about the ability to bring a right of action in domestic law based on a failure to comply with a general principle of EU law when it concerns the operation of retained EU law.
Furthermore, because retained EU law has supremacy over domestic law, it must be possible that there might be instances in which our domestic law would have to be altered. The Government cannot then argue that that is an extraordinary thing to do, because they have themselves drafted this Bill in a way that allows for the possibility of UK domestic law being quashed. That will, I hope, be for a temporary period. Nevertheless, I am unable to understand how, during that temporary period, we can end up with a situation where the Government are perfectly happy to allow for the supremacy of EU law but remove the very principles that moderate it, ensure that it cannot be abused, and, in those areas that were within EU competence, provide a framework under which Government are undertaking to operate unless or until they repeal the bits of retained EU legislation that they are bringing into our law.
Before my hon. Friend intervenes, let me say this to him. The big argument against EU law is that it was either created by “this foreign body” or it was inflicted on us and we had to enact it in order to comply with our international legal obligations. In those circumstances, it is a bit odd if we start arguing that, in view of where it comes from, the possibility of, for example, knocking it on the head because it does not comply with its own general principles should be entirely abandoned.
I hope that my right hon. and learned Friend will not go down the rabbit hole suggested by my right hon. and learned Friend Mr Clarke, which is that we should accept this incongruous proposal when in fact it involves a fundamental principle of constitutional supremacy. I am sure that my right hon. and learned Friend the Member for Beaconsfield understands that. He is identifying a number of questions, and I entirely encourage him to continue to do so. I suggest, however, that it would be very unwise indeed to follow the advice of my right hon. and learned Friend the Member for Rushcliffe as regards the Government accepting these amendments for the time being.
I understand my hon. Friend’s point. However, the purpose of this Bill, as I understand it, is to put together a package that enables a smooth transition from our presence within the European Union to our presence outside of it. That, of necessity, requires adjustments to the purity of his thinking about parliamentary sovereignty, which the Government have been required to acknowledge in the way that they have drafted this Bill. In those circumstances, it does not seem to be pushing the boundaries very much further, nor should it be seen as some treasonable article, for us to consider whether the general principles of EU law ought not to be capable of being invoked when they are probably the very thing that has, over the years, prevented the EU from turning into an even worse tyranny, as my hon. Friend would see it. [Interruption.] Well, I have to say, having listened to him, that that is usually the impression that has come across. He sees it as tyrannical because it is not moderated by the doctrine of our parliamentary sovereignty. I simply make that point; I do not wish to labour it.
Is there not an important change once we have left the European Union in that the European Court of Justice would not accept the jurisdiction of the European Court of Human Rights because it would not accept that a higher court could intervene in any of its rulings? It therefore needed protections within its own system that within our system are provided by the European Court of Human Rights and the application of that in domestic law.
My hon. Friend makes an interesting point. I slightly question the extent to which we have had clear evidence of that, although I know that there has been a reluctance on the part of the European Court of Justice to accept any higher authority, despite the intention of the parties that it should become subordinate, ultimately, to the ECHR. He is right that one reason why the charter came into being was to secure compliance. I think it is rather more of a hypothetical than an actual state of affairs, although such a problem might exist in future. In any event, I do not think we are dealing here just with matters covered by the ECHR, for the very reasons that were discussed earlier in relation to new clause 16, which was tabled by the hon. Member for Nottingham East. I simply say to my right hon. and hon. Friends that the issue has to be addressed.
As I said earlier, I recognise that my amendment is not as good as it might be, and could be improved on. If the Government can give me an assurance that is adequate and goes beyond vagueness, I will be content not to press amendment 10 a vote. The issue is not going to go away, however, and when one is in this sort of dialogue with the Government, one does not want to be soft-soaped off. If that happens, there will be a road crash when we come to Report, in which I will be unable to support the Government on a whole series of matters. I hope that those things can be resolved by consensus.
I have spoken for quite long enough, but I have explained why I think that, on the important issue that we are debating today, the best solution in the interim is to use something along the lines of amendment 10 to ensure that general principles of EU law can continue to be invoked. Of course, as the transition goes on, I assume that so much EU law may disappear, but I venture the suggestion that it will continue to be relevant for some time to come.
May I, finally, touch briefly on the three other amendments —297, 298 and 299—that I have tabled? They are very simple, and they concern the use in clause 5 of the words
“any enactment or rule of law”.
I simply say that nobody I have spoken to understands why the words “rule of law” appear in the Bill. Ultimately, a rule of law is a rule of the common law; and in so far as a rule of the common law is displaced by statute, that rule will be displaced, of itself, by the courts. It does not require to be spelled out in legislation. I draw some comfort, on that, from the fact that a very distinguished lawyer who previously worked in this building shares my view that the inclusion of those words is incomprehensible. I do not think that that is a matter that I would necessarily put to the vote, if I was required to do so, but I hope that the Government might be able to provide a positive response on it. I am grateful to the Committee for listening.
It is a genuine pleasure to follow Mr Grieve, who made his case extremely well and very convincingly—it is supported by many hon. Members on both sides of Committee.
I rise to speak to amendment 46, which is designed to ensure that we keep the charter of fundamental rights in EU retained law; amendment 335, which would maintain the principles of the Francovich ruling after exit day for pre-Brexit cases; amendments 285, 286 and 287, which make provision for existing arrangements to continue during a transitional period; and, finally, amendment 336, which makes provision for retaining existing principles of EU law within domestic law until the end of the transitional arrangements.
I think I could probably get a few more sentences into my stride before taking an intervention, but I certainly anticipate that I will take interventions from the hon. Gentleman.
The debate raises fundamental principles about the transposition of EU law and the important role of this House in holding the Government to account for their commitments. Last week, the focus of the debate was on the Government’s attempt to unravel the Prime Minister’s pledges on the transitional arrangements in her Florence speech, by the imposition of a defined exit day for all purposes. The Minister, Dominic Raab, made a good attempt to defend the indefensible and not commit to the application of the jurisdiction of the Court of Justice of the European Union throughout the transitional period; that was not the Government’s line at the time. It would have been helpful if No. 10 had said a week ago what it said this morning, namely that the Court of Justice will have jurisdiction throughout the transitional period. If that had happened, the Minister would not have been left in such a mess.
That was the focus of last week’s debate, but this week the debate is about securing the proper transfer of the rights and protections of EU law on to our statute book. That is something on which the Government have made strong claims. They have made two very clear propositions about this Bill. The first is that it serves to provide certainty and legal continuity, through the creation of the new category of retained EU law. Indeed, on Second Reading, the Secretary of State for Exiting the European Union said:
“The key point of this Bill is to avoid significant and serious gaps in our statute book.”—[Official Report,
Vol. 628, c. 344.]
The Government’s second claim is that the Bill
“does not remove any underlying fundamental rights or principles which exist”.
And yet clause 5(4) of this Bill flies in the face of both those claims. That subsection, as has been pointed out, omits from domestic law after exit day the charter of fundamental rights, through which all EU law is interpreted. A failure to transpose the charter into EU retained law creates a gap in our statute book. As the Equality and Human Rights Commission has stated, the Bill, as it stands, will not achieve the Government’s stated aim of non-regression on social justice issues. That is a serious matter, which the House must take account of.
We recognise that steps will be required to make the charter operable in domestic law, and there has been some debate on that already. There is no reason why this House could not direct courts in the UK to interpret retained law by taking into account Luxembourg’s interpretations, such as is the case with the Human Rights Act and the ECHR in the Strasbourg Court. That matters, and I will explain why the inclusion of the charter in retained EU law is critical to maintaining and upholding those rights.
Is the hon. Gentleman about to move on to explain why Tony Blair and the Lord Goldsmith fought so hard to obtain protocol 36—I think it was that one—in the Lisbon treaty, which the Conservative party opposed? At the same time as advancing the charter of fundamental rights, will he explain why we cannot pass such legislation as we wish to in this place?
I was not about to go on to that, but clearly I am now. The hon. Gentleman knows that the charter was not binding when it was first adopted in 2000. It was made legally binding by the Lisbon treaty of 2007, which entered into force in 2009. It has, as the right hon. and learned Member for Beaconsfield pointed out, increased in significance, and the rights that it contains have become more visible and correspondingly more effective. Labour supported the charter then, and we support it now, because it has enhanced and improved European human rights protection, and by doing so it has significantly developed the quality of human rights protection in the UK. The wider point that Sir William Cash makes is not relevant to the issue under discussion.
The charter applies only when national authorities are implementing EU law. Does the hon. Gentleman not agree that if it is retained, it risks creating a confusing inconsistency by giving citizens powerful rights to strike down some pieces of legislation, but not others? Is it not a case of doing either the whole thing, or nothing at all?
I will come on to this point, but the charter is key to ensuring that retained law is treated properly and that the same rights of enforcement continue in the future. Without the charter, those rights are significantly diminished and access to them is diminished.
Let me proceed with the point I was making about how the charter goes wider than the Human Rights Act and the European convention on human rights, which I hope I am right in saying the Government accept. As other Members have already pointed out, it was the Secretary of State for Exiting the European Union who relied on the charter in the case he brought before the High Court in 2015, against the then Home Secretary and now Prime Minister, when he was worried that the Data Retention and Investigatory Powers Act 2014 would impact on MPs’ ability to communicate with constituents confidentially. He cited the charter, and his lawyers argued that it went beyond the European convention on human rights and granted further protection. He relied on the charter precisely because it provided greater human rights protection than was provided for by UK law and even by the case law of the European Court of Human Rights.
Despite this, the Government have not indicated which decisions of the Court of Justice of the European Union under the charter they disagree with. Moreover, the explanatory notes to the European Union (Withdrawal) Bill justify the decision to exclude the charter from retained EU law:
“The Charter did not create new rights, but rather codified rights and principles which already existed in EU law. By converting the EU acquis into UK law, those underlying rights and principles will also be converted into UK law, as provided for in this Bill.”
If that were the case, it would be fine, but it is clearly not the case.
Drawing on existing rights, the charter set out a new framework for human rights protection under EU law. The rights contained in the charter may have existed in EU law for decades—the Government are relying on that point—but that is not enough. The whole point of the charter was that nobody could verify those rights or their sources, and as the lawyers among us will know, identifying the source of a right is imperative in securing effective recourse. In his speech, will the Minister therefore clarify whether the Government have succeeded, where others have not, in comprehensively identifying every single source of these rights? If not, how do they plan to uphold the same level of protections for these rights once we have left the European Union, because a right without effective recourse is rendered effectively meaningless?
By compiling and codifying these rights in a single document, the charter in effect created new rights and certainly created new protections. In short, the charter is the most effective key to unlocking vital rights, and to fail to transpose it and make it operable in UK law is to lock away those rights and deny UK citizens the key to accessing them.
On the data protection point on which the Secretary of State relied—my right hon. Friend Stephen Timms raises it in his amendment 151, which we support—the right to data protection exists in various documents, such as directives and regulations, but it was only by virtue of the charter creating the expressed right to data protection in article 8 that we were given the right to be forgotten.
The rights extended by the charter are not only data protection rights. Such rights start in article 1, which includes the right to human dignity. This does not exist as an enforceable right in common law or statute law applicable to retained law post-Brexit. Will the Minister, when he responds, explain how this right will be enforced after exit day if the charter is not retained?
Will not the hon. Gentleman’s proposals create more uncertainty and raise more questions than answers? For example, considerable reference has been made to the Union, to citizens and to the right to vote and stand in European elections, but is that not at odds with our being a non-member state on our leaving the European Union?
No. The right hon. and learned Member for Beaconsfield answered that point when it was raised by other Members. There are clearly provisions in the charter that would have to be amended to become operable—I made that point a few moments ago—but it includes fundamental rights, so the protections of our citizens will be reduced if the those rights are not carried forward. I will illuminate that point a little further.
The hon. Gentleman proposes that part of the charter should be erased and that it should undergo some kind of surgery before it is applied through UK law. Is it not right that questions of principle and policy should not be debated in relation to this Bill, the purpose of which is to provide legal certainty and continuity, but left for wider parliamentary debate and scrutiny, and indeed the wider democratic process?
I am genuinely puzzled by the hon. Lady’s point because she could make it in relation to all of the several thousands of laws that are being transposed. It could relate to every other part of the Bill. We will have to go through processes of adjustment to ensure their effective operability, but the question that needs to be answered—I hope it will be answered by the Minister when he rises at the Dispatch Box—is: why, uniquely, is the charter of fundamental rights being treated differently and being removed at this stage?
My hon. Friend is making a very powerful case, and my anticipation of the Minister’s speech increases minute by minute as the case is advanced. Does my hon. Friend share my puzzlement, first, that given that the Government’s stated objective for the Bill was to move everything across, the one thing they have decided to leave behind is the charter; and, secondly, that Conservative Members have argued that nothing will be lost by the disappearance of the charter, yet we have already heard powerful testimony in speeches to the contrary? That testimony includes the point raised by my hon. Friend Mr Leslie, when he referred to the judgment in the tobacco case, in which the charter clearly had an important impact in enabling, in that case, the Government to enforce their rights in relation to their desire to have plain packaging—never mind its being the reason why the Secretary of State, in a former life, decided to call on it in trying to sue the Government. Is there not an incompatibility between the two positions?
My right hon. Friend is absolutely right. Like him, I am looking forward to hearing the Minister attempting to square the circle on that one. It is one thing for the Government to argue that the charter needs to be removed, but it is another for others then to argue that it makes no difference. Let me illustrate a few other areas in which the charter does make a difference.
Let us take article 24—it was mentioned earlier—which gives effect to the UN convention on the rights of the child. While we are a signatory to the convention, that does not provide the same legal protection—simply as a convention signatory—as would be provided by the incorporation of the charter. Let us take the right to a fair hearing, which goes beyond article 6 of the European convention on human rights on the right to a fair trial, because it applies to civil rights and obligations, as well as to criminal charges. In the ZZ case, with which the Minister will be familiar, the Court of Justice of the European Union held that the right to a fair trial in article 47 of the charter applied to immigration cases. Significant issues are therefore at stake.
Let us look at article 13, which requires that academic freedom shall be respected. With the possible exception of some Government Whips—the Vice-Chamberlain of Her Majesty’s Household, Chris Heaton-Harris, was keen to see the reading lists and curricula of university lecturers to make sure they were teaching Brexit correctly—I am sure that Members on both sides of the House agree that academic freedom is an important principle, and it is not secured anywhere else. How do the Government anticipate that these rights will be enforced in the absence of the charter, and which aspects of the EU acquis or UK domestic law could be used to guarantee these rights? That is an important question.
It is not just that excluding the charter will diminish rights; the charter has transformed access to human rights protection. As the House of Commons Library briefing makes clear, it is not just that the charter contains more rights than the European convention on human rights and codifies existing rights in one place. When we compare the charter with the Human Rights Act, we see that it has a wider class of applicants who can use it. Anyone with a sufficient interest can apply for a judicial review based on the charter, and it can also be relied on in other types of case—for example, employment tribunal claims—that are within the scope of EU law. By contrast, claims under the Human Rights Act can only be made when an individual is a victim of a rights violation.
Our rights always used to be guaranteed, and will be guaranteed once we have left, through a combination of common law and statute law. I do not understand what threat the hon. Gentleman has in mind regarding these rights, because if any threat emerged it would be struck down either by the Supreme Court or by Parliament.
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.
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.
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.
The hon. Gentleman said that he did not understand the point I was making. Our rights will be guaranteed once we have left by our Supreme Court and by common law or the application of our statute law. I cannot think of a right that he and I value that will be destroyed because we have not incorporated the charter. I think that they will be guaranteed by those ancient and tested methods.
We are talking about statute law, and about rights such as the one on which the right hon. Gentleman’s friend and colleague, the Secretary of State for Exiting the European Union, relied. I think that that point is clear.
Returning to the comparison of the charter with the Human Rights Act, as well as the wider class of applicants for which it provides, it allows for stronger remedies. If any national court finds that any national law is incompatible with a directly effective provision of the charter, it must disapply contravening primary legislation or quash secondary legislation. We have exercised some of the arguments around that issue, but that is much stronger than a notification of incompatibility. We should be in no doubt that losing the charter means losing rights.
Has the hon. Gentleman considered the impact in relation to alleged and actual terrorists on the question of national security and case law? Many people who would like those individuals to be deported would find that extremely difficult under the principles of the charter because of the provisions relating to the protection of family life, which have been badly abused.
In his keenness to tackle the argument, I think that the hon. Gentleman has missed the point. That has nothing to do with the charter.
Let me turn to a separate but related point on schedule 1, which states:
“There is no right of action in domestic law” post-exit
“based on a failure to comply” with EU general principles. The schedule also prevents courts from ruling that a particular Act was “unlawful” or from quashing any action on the basis that it was not compatible with the general principles. Damages are not allowed, so general principles are rendered irrelevant, which also reduces rights. Our amendment 336 seeks to address that by retaining the existing principles of EU law regardless of whether they originated in case law, treaties, EU legislation or directives. The date on which that retention would end would be the end of a transitional period.
Let me turn to our amendment 335 to schedule 1 on the Francovich rule. I shall be brief because others have tabled similar amendments, which we support, and I want to give them a full opportunity to make their case without my anticipating what they are going to say.
On a point of clarification, the hon. Gentleman said that the date on which the retention would end under the amendment would be the end of the transitional period. Did he mean that no new general principles of EU law formulated after that date would apply, or did he mean the retention would end at the end of the transitional period?
If the Prime Minister’s words are to be taken at face value—we continue to operate during the transition practically as if we were still part of the membership—new principles would apply during the transitional period, although not after it had ended.
The hon. Gentleman has touched on an important point. If we are going into a transitional period retaining the architecture of EU law, or the vast majority of it for that period, to try to leave at the end of the transition and go back to the status of retained EU law on the date on which we moved into transition would be utterly unrealistic. It would have to be from the date on which we moved from transition to final departure.
I thank the right hon. and learned Gentleman, who has made the point much more effectively than I did. That is absolutely right.
Briefly, Francovich raises some important issues of accountability. Surely there is oversight by Government, because I would expect them to accept that the right to damages should be available in cases where the breach of Community law took place before exit day, and indeed before the end of a transitional period, but discovery only took place afterwards. I am therefore seeking clarification from Ministers on that point, and I hope that they accept what hon. Members are seeking to do in amendments on Francovich.
We are pleased to support new clauses 16, 78 and 79, as well as amendments 297, 298, 299, 8,10,101,105 and 62 and the consequential amendments 126 ,127,129,140, 141, 302 and 9—just for clarity. In conclusion, I return to amendment 46, because we need some honesty from the Government. The House has not authorised the Government to use Brexit as a vehicle to deplete human rights in this country. If the Government want to reduce rights and protections, they should say so and we can debate it. What is not acceptable is to pretend that the Bill provides for the transfer of rights and protections when it clearly does not.
The Secretary of State for Exiting the European Union has made a number of statements about the fact that if Opposition parties can identify rights that will not be covered he is willing to look at them and legislate for them. We have discussed a third category of rights—not those protected by the Human Rights Act or those that will be irrelevant because they are in the charter and will no longer apply —so is the hon. Gentleman prepared to take that at face value and work with the Government to ensure that those rights that have been identified are protected?
If the Government can identify the sources of rights covered by the charter and can explain exactly how any deficiencies or gaps left as a result of failure to transpose the charter will be identified, and if they outline what remedies they might make at a later stage, we would be happy to sit down with them and talk about that. It is absolutely clear to us that the Government should stick by their word and their claims in relation to the Bill on the need for the existing level of human rights protection to be preserved in UK law. As it stands, central to that consolidation is retaining the charter as part of the retained EU law. I hope the House will agree and I hope the House will support our amendments.
It is a pleasure to follow Paul Blomfield. At the outset, I would like to thank hon. Members from right across the House for their contributions to today’s debate, whether in speeches or in amendments. The Government will approach the Bill in the spirit of collaboration, and I certainly welcome the constructive contributions and diligent scrutiny hon. Members are rightly providing today. I shall seek to address clause 5, and the Solicitor General will address schedule 1 a bit later in the debate, to make sure we dwell adequately and with due consideration not only on the provisions of the Bill, but on the various issues and amendments, for which I am grateful to hon. Members, that have been raised.
Clause 5 serves two key strategic objectives: taking back democratic control over our laws and making sure we leave the EU in a way that facilitates a smooth Brexit and minimises legal uncertainty. The Bill aims to provide that the laws which apply immediately before exit day will continue to apply in the same way after we leave. Of course, the act of leaving the EU in itself means it is inevitable that some things will not and cannot stay the same. The changes made by clause 5 relate to certain aspects of EU law which are no longer appropriate, or which will not make sense when we leave the EU because we will then cease to be under the obligations that apply to us as an EU member state. The provisions are therefore essential.
Clause 5(1) ends the supremacy of EU law in relation to new law from the date of exit. That is crucial if we are going to give effect to the mandate from the referendum. At the same time, clause 5(2) makes sure that EU law passed before exit still applies as before, for the sake of legal certainty. That is important for mitigating the risks of legal uncertainty that are inevitable and inherent in departure from the EU. The rest of clause 5 reinforces those critical objectives, including by removing the instrument of the charter on fundamental rights as part of domestic law. I want to come on to address that in detail.
May I refer my hon. Friend to clause 5(2)? My right hon. and learned Friend Mr Grieve, in his rather amazing speech which I think we all found very illuminating, said that this was a completely new principle to be applied in British law. Is it not just a translation of an existing principle in EU law into United Kingdom law for the purposes of a smooth Brexit? Is it not, in fact, less exceptional than being a member of the European Union and allowing a court in a wholly different jurisdiction to impose itself on parliamentary sovereignty?
I thank my hon. Friend for his intervention and I will come on to address very carefully the speech made by my right hon. and learned Friend the Member for Beaconsfield. I agree that there is an inherent sense that, as we move to change, things are not going to be exactly as they were before. I want to draw a very important distinction. We are leaving the EU and taking back control over our laws and the way we make our laws, so that Members across the House can exercise proper democratic control. At the same time, the substantive law—the rules and the principles—will remain the same, because of the snapshot we are taking on exit day and retaining UK law, thereby avoiding the putative legal cliff-edge.
I will just make a little bit of progress and then I will give way to my right hon. and learned Friend.
I will address the detail of this by reference to the new clauses and amendments that have been tabled, because they usefully highlight and flag up the different concerns of hon. Members. As a matter of guiding principle, I hope all hon. Members can agree that we should not make changes that exacerbate the risk of legal uncertainty, which I think goes to the point my hon. Friend Mr Jenkin was making in his intervention. Our substantive law will remain the same on exit day, but it would be wrong in principle—indeed, I think we would find it counter- productive in practice—to seek to cling to all the procedural mechanisms that are inherent, intrinsic and inextricable institutional features of EU membership.
I will not give way just for the moment, but I will give way to the hon. and learned Lady shortly.
To do so would sow greater, not less, legal confusion and I know that that is not the intention of any hon. Member.
I will first address new clause 16, tabled by Mr Leslie, which relates to the charter and, in particular, would introduce a reporting requirement. I will briefly explain why that is unnecessary. The hon. Gentleman, in his perfectly constructive and considered way, has concerns that I want to address. Let me start by saying the Bill will reinforce our UK human rights framework, not diminish it, precisely because we are making sure that the substantive rules of EU law will be retained on day one of exit. This country has a long-standing tradition of liberty and rights, and we intend to build on that following our departure from the EU. The Government are resolute in that commitment. We have always been, and will continue to be, a beacon of freedom for the world, as we have demonstrated since Magna Carta, through the 1689 Bill of Rights, and up to and including more recent commitments to respecting and, yes, remaining a party to the European convention on human rights. The addition of the hon. Gentleman’s reporting requirement will not enhance those substantive rights protections, nor will it give the House any better ability to scrutinise and clarify how rights will be protected after exit.
I will come on to say more about some of the underlying points the hon. Gentleman addressed and on the substance of the charter in the context of amendments 8 and 46, but let me give him the reassurance that the reporting requirement is redundant. Excluding the charter from the body of retained EU law does not affect the underlying and underpinning substantive rights. They are the primary source of rights that existed prior to the charter coming into force and which any citizen will be able to rely on in practice after we leave. That is not just this Government’s position; it was the last Labour Government’s position. In fact, Tony Blair went far further than I have today, telling the House:
“It is absolutely clear that we have an opt-out from…the charter”.—[Official Report,
Vol. 462, c. 37.]
Before all Opposition Members start to run away from the promises made by the previous Labour Government, I just remind them that the current spokesperson on constitutional affairs for the Labour party, the noble Lord Falconer—he is still a spokesman, according to the Labour party website—said:
“the charter lays down existing rights;
it is not a legally binding document.”—[Official Report, House of Lords,
Vol. 676, c. 1252.]
It later became clear, of course, that there was no opt-out, but it is right that we will be retaining the substantive rights and principles that the charter merely sought to codify. I will explain that in more detail shortly, but I hope that on that basis I can urge the hon. Member to withdraw his procedural amendments.
I will give way shortly to the hon. and learned Lady, because I know she supports some of the amendments.
I turn now to amendments 297, 298 and 299, tabled my right hon. and learned Friend the Member for Beaconsfield, and to amendments 285 and 286, tabled by the leader of the Labour party, Jeremy Corbyn. My right hon. and learned Friend the Member for Beaconsfield wishes to remove any reference to “any rule of law”, which is a reference in the Bill to common law rules in relation to provisions addressing supremacy of EU law. In effect, his amendments—at least, as I have understood them and I stand to be corrected—would allow EU law to continue to trump the common law after the date of exit. However, this would undermine both of the key strategic objectives of the Bill. It would mean in relation to common law rules articulated after exit day that retained EU law trumps them, undermining the UK’s basic constitutional hierarchy that we are seeking to restore and affirm.
Paradoxically, with respect to the relationship between retained EU law and common law rules made up until exit day, my right hon. and learned Friend’s amendment would skew the clear and certain snapshot the Bill will take, because retained EU law would no longer supersede common law rules. By removing the common law from the operation of the Bill, I am afraid the amendments would—at least on the Government’s analysis—create considerable uncertainty for business and individuals alike.
No, I want these words removed because they are completely unnecessary. To use that wonderful word that lawyers like to apply, they are otiose—they add absolutely nothing to the Bill. The common law will be adjusted according to the statutory framework in which it operates, so I say with some regret—because someone clearly came up with the idea—that it seems rather poor drafting. Others, whom I consulted because I was puzzled by this, and who have spent their lives drafting precisely this sort of legislation, seem to agree with me. I was trying to help my hon. Friend, not create some devilish plot to scupper Brexit.
I am not sure where this devilish plot has come from—I have made no such suggestion; I was simply pointing out to my right hon. and learned Friend that, as my hon. Friend Mr Jenkin, the Chair of the Public Administration and Constitutional Affairs Committee, mentioned earlier, some of the amendments run the risk of creating more, not less, uncertainty, notwithstanding their perfectly laudable and genuine aims.
If my right hon. and learned Friend’s amendment were passed, it would no longer be clear how common law rules would interact with a particular provision of retained EU law in the event of a conflict between the two. Across a range of issues, from animal welfare to competition law, the concern is that such an approach would create uncertainty about the legal position of citizens and businesses. I am sure that this was not his intention. I am not looking for devilish plots on any side of the House, but I do fear that that would be the practical reality.
On the subject of devilish plots and “The Screwtape Letters”, may I refer my hon. Friend to chapter 12 of Lord Bingham’s magisterial work, “The Rule of Law and the Sovereignty of Parliament?”? In this context, its reference to the rule of law is highly relevant, simply because it refers, indirectly or directly, to the issue of the constitutional supremacy of law making and the construction placed upon it by the courts themselves. On that issue, the rule of law does, I think, have considerable salience.
My hon. Friend makes a considered and thoughtful point. Given the changes we are making—for the purposes of greater certainty and clarity—I respectfully suggest to my right hon. and learned Friend the Member for Beaconsfield and other hon. Members across the House that it is worth having some clarity and certainty on this point.
I turn now to amendments 285 and 286. We discussed similar amendments from the leader of the Labour party on day one of the Committee in relation to clause 6, and for the same reasons given during that debate, we cannot support them. I note again what the Prime Minister said in her Florence speech:
I will not speculate on the contents of the withdrawal agreement. The Government will do whatever is necessary to prepare for our exit and have already made it clear that separate primary legislation will be brought forward to implement the terms of the withdrawal agreement and any implementation period. With that in mind, the amendments would pre-empt and prejudge the outcome of the negotiations and introduce a straitjacket of inflexibility for the duration of any implementation period. We are all in the House committed to securing the very best deal with our EU friends and partners, and I respectfully suggest that the amendments would undermine that objective. I urge the leader of the Labour party not to press them.
The hon. Gentleman said earlier that one of his guiding principles was not to exacerbate any legal uncertainty, but the Exiting the European Union Committee has heard evidence from a senior lawyer that the body of retained law will contain instruments that make explicit reference to the charter. If the charter is not part of retained EU law, how are the courts supposed to interpret the body of retained law that refers to it?
The hon. and learned Lady makes a perfectly respectable and legitimate point, but I will address it in the context of amendment 8, tabled in the name of the my right hon. and learned Friend the Member for Beaconsfield, and amendment 46, tabled in the name of the Leader of the Opposition, both of which, in different ways, seek to retain the charter of fundamental rights in domestic law after exit by removing clause 5(4) and (5). I understand and appreciate the sentiments behind the amendments. Hon. Members are understandably concerned that as we leave the EU we do not see any diminution or reduction in the substantive rights we all enjoy. The Government are unequivocally committed to that objective. I remind the Committee again of the country’s record of pioneering, defending and protecting human rights standards since well before the EU existed and of our ability as a nation to withstand the darker moments in European history that have touched other less fortunate nations.
My hon. Friend reassures us that even without the charter of fundamental rights the House of Commons can be relied upon. That was the argument when the Lisbon treaty was being ratified. There was a widespread feeling that it was not clear whether it would add anything, but we now see that it has added quite a lot, particularly around privacy law, on which the House had never done anything, and now data protection. The lobbies brought to bear on the House if ever we look at privacy by sections of the media and so on are very considerable. Why are we getting rid of a convention that has done no harm and actually has run ahead of this House of Commons at various stages? What will be gained by not leaving open that opportunity for the future?
I will come shortly to my right hon. and learned Friend’s substantive generic point and also touch on the data protection issue he raised.
The Government reaffirm and renew our commitment to human rights law. It is reflected through UK national law, including, most recently, the Human Rights Act, as well as a range of domestic legislation that implements our specific obligations under UN and other international treaties, from the convention against torture to the convention on the rights of the child. Of course, the principal international treaty most relevant to the UK’s human rights laws is the European convention on human rights. I again make crystal clear the Government’s commitment to respecting and remaining a party to the ECHR. There will be no weakening of our human rights protections when we leave the EU.
In fact, we have an opportunity to reinforce and build on our proud tradition of liberty and the protection of rights. We are already in the process of paving the way to ratifying the Council of Europe convention on preventing and combating violence against women, the Istanbul convention. We are leaving the EU, but our commitment to pan-European standards, human rights and the European co-operation in this area remains undimmed. Furthermore, as the my right hon. and learned Friend the Member for Beaconsfield is aware, we will introduce an amendment before Report stage, dealing explicitly with the Equality Act issues that hon. Members have raised, including by requiring Ministers to make a statement before the House on the consistency of any Brexit-related legislation with the Equality Act.
It is worth reinforcing the point that the charter is not the original source of the rights contained within it. It was only intended to catalogue rights that already existed in EU law. Indeed, I am glad that my right hon. and learned Friend Mr Clarke intervened, because he wisely noted, as recently as 2011, before a European Committee, that protocol 30 governing the application of the charter
“sets out the boundaries around the charter by confirming that it neither creates nor extends any rights to EU citizens outside those that had existed pre-Lisbon, and it emphasises that member states are required to comply only when giving effect to EU law.”—[Official Report, European Committee B,
These rights, codified by the charter, came from a wide variety of sources, including the treaties, EU legislation and, indeed, case law, that recognised fundamental rights as general principles. All of those substantive law principles and rights, of which the charter is a reflection not the source, will already be converted into domestic law by the Bill.
It is not necessary, therefore, to retain the charter in order to retain such substantive rights. With that in mind, it is right—this deals with the issue that the hon. Member for Nottingham East raised at the outset—for me to reaffirm the Government’s commitment, which the Secretary of State for Exiting the European Union made to the Select Committee, to publish a detailed memorandum setting out how each article of the charter will be reflected in UK law after we leave. I can confirm that we will publish that by
Yes, it will, and, as I was about to say, there will indeed be a Report stage. If my right hon. Friend, or any other Member, feels that our analysis is deficient, or that we have missed out a substantive right that risks being removed if the charter is not retained, once the memorandum has been considered I will be happy to sit down with my right hon. Friend—and any other Members—and discuss the issue again.
This has been a long and complex legal argument, but let me summarise it. The issue of data protection is vital to many of my constituents, especially young people online, but it is also vital to our tech and financial services sectors. Can my hon. Friend assure me that there will be no risk of a legal challenge in relation to data protection because of the way in which these provisions are being brought into British law?
I know that my hon. Friend is an expert on these matters because of her time in the European Parliament. I shall be addressing data protection directly, but I shall be happy to give way to her again in due course.
The other argument that has been made about the charter is “If it does nothing wrong or does nothing by itself, where is the harm in keeping it?” However, as was pointed out by my right hon. and learned Friend the Member for Rushcliffe, the charter applies to member states only when they are acting within the scope of EU law. Indeed, it is a specific device intended to codify—not create—rights, and apply them to EU member states and other EU institutions operating within the framework of EU law. It would be curious, if not perverse, to incorporate that instrument directly in UK law, or implement it, at the very moment when we ceased to have the relevant obligations as a member of the EU.
I will make a slight bit of progress, and then I will give way.
Seeking simply to transplant the charter into our domestic law as it stands, dislocated from EU membership —given all the other points that Members have made about the way in which it would apply in practice—would not be appropriate, and, indeed, could introduce needless complexities that all of us, on both sides of the House, should legitimately seek to avoid.
My hon. Friend has addressed my question, but, with great respect, he has failed to give an answer. It is true that the charter was originally proposed as a statement of European values to which all members of the European Union could adhere, but, as we have heard, it has developed. If it is doing no harm, why are the Government going to such lengths to get rid of it as the one specific change in the Bill? Presumably it is because it contains the words “European” and “rights”, and this was intended as a Daily Telegraph gesture to the hard right wing of my party.
My right hon. and learned Friend’s intervention was not in quite the spirit in which we have conducted our proceedings so far, but I shall try to address his underlying concern, and I shall be happy to take another intervention from him shortly if he thinks that I have still not addressed it. He is a demanding customer, but I shall keep on trying.
I am going to make a bit of progress, but I will give way shortly.
Let me, again, be clear about what the Bill does. It takes a “snapshot” of substantive EU law, including the underlying fundamental rights and principles at the point of exit. It converts those into UK law, where they will sit alongside the Human Rights Act and other UK legislation on human rights. That is a crucial point. As my right hon. and learned Friend the Member for Beaconsfield rather perceptively asked during debates on the Lisbon Treaty in 2008,
“Will the Lord Chancellor confirm that every country that is a member of the European Union is also a signatory of the European Convention on Human Rights? Indeed, I believe that every single one has incorporated it. In view of that, what is the purpose of the charter of fundamental rights?”—[Official Report,
Vol. 471, c. 804.]
During the same debate, my right hon. and learned Friend made the point, far better than I can—and I say this with all due deference—that the risk of adopting the charter was that it would, at least potentially, run into conflict with domestic human rights law, thereby creating at least the potential for legal confusion. This is the point that I want to make to my right hon. and learned Friend the Member for Rushcliffe. If we incorporated or implemented the charter, we would in effect be triplicating human rights standards in UK law, opening up wide scope for uncertainty. My right hon. and learned Friend the Member for Beaconsfield was right about that then, and I think he is right about it now.
With all due respect, I do not understand the point that the Minister is making. The charter is already part of UK law, because we are a member of the European Union.
As we leave the European Union, it will make no sense to retain the institutional framework of membership. What we will do is retain, in the way that I have described very carefully, the substantive rights that were codified in the charter. If, when we publish the memorandum, the hon. and learned Lady, or any Member on either side of the House, thinks that there is a gaping gap, we will be able to address that.
Will the Minister confirm that the evolution of our rights through history shows that the best way in which they are created and defended is through the democratic instincts of the British people, and that they then trust this Parliament to make sure that those rights are fully entrenched? As the Minister has assured those rights, I really do not see what the problem is. What is the threat to those rights? We have a free Parliament representing a free people.
I am grateful to the Minister. He said a moment ago that one of the arguments he was advancing for not incorporating the charter was that it might then come into conflict with our own human rights law. Given that, as we heard from Joanna Cherry, it has been part of our law for some time, can he give the Committee one single example of that happening?
I think that the right hon. Gentleman should look at, for example, the Devine case on prisoner voting. It is very unclear how the case law in the Luxembourg and Strasbourg Courts meshes together. It is possible to argue in favour of one or the other, but they are not entirely consistent or compatible. When giving evidence to a House of Lords Committee in 2015, my right hon. and learned Friend the Member for Beaconsfield defended the Strasbourg Court very validly by contrasting it with the “predatory” habits of the European Court of Justice in Luxembourg. I think that even those who have been the most enthusiastic human rights defenders, and those on the remain side of the argument, will recognise the clash and the inconsistency between those jurisprudences.
I am not going to give way again.
The point I wanted to reaffirm is that, given that the substantive rights codified by the charter will be retained in EU law, it does not make sense to incorporate the EU charter itself, an element of the EU’s institutional architecture designed to regulate EU membership, at precisely the moment when we are leaving.
Does my hon. Friend accept that there may be a third category of rights that are in the charter but are not in the Human Rights Act, and require protection, and that the source of those rights cannot be identified other than in the charter? If so, will he accept the suggestion made by my right hon. Friend Sir Oliver Letwin that there should be an Act of some sort to deal with them?
As I have made clear, we will publish a memorandum containing article-by-article analysis of the charter and how the substantive underpinning rights at the point at which it is codified can be reflected in UK law. I am happy to continue the dialogue with my right hon. and learned Friend the Member for Beaconsfield and my right hon. Friend the Member for West Dorset if they believe that any rights have been missed out.
I am going to make a bit more progress, but I will give way shortly.
The amendment relates to privacy and protections, an issue that has been mentioned by a number of Members on both sides of the Committee. I suggest to the right hon. Gentleman, respectfully and humbly, that the amendment is not necessary. It is not required because the Data Protection Bill will set high standards for protecting personal data, linked to the General Data Protection Regulation. We will continue to maintain the highest standards of data protection after we leave the European Union. The Bill will also preserve in domestic law existing EU fundamental rights, including data protection rights and underlying case law, which were already part of EU law before the charter came into force. Individuals in the UK will continue to have access to well-established domestic and international mechanisms to bring their cases and obtain appropriate remedies, whether in Strasbourg or under the Human Rights Act, when they consider that their rights have been breached. That includes the right to seek a judicial remedy against data controllers or processers.
I thank the Minister for his words on the Data Protection Bill, which will give strong data protection in the UK. However, my understanding of general data protection regulation in Europe is that it is based on the fundamental principle that people own their own data, whereas the Data Protection Bill does not, as we have drafted it here, start with that fundamental principle. So we either need to amend that Bill or still recognise that principle in order for them to be equivalent; that is what we need to aim for if we want to achieve equivalence.
I thank my hon. Friend; she has made her point in a very careful way. I suggest that that is something for the passage of the Data Protection Bill in due course, if she feels there are gaps in it, and if, after having looked at the memorandum we are publishing, she is not persuaded that we will be reflecting in UK law after exit all the rights.
I am grateful to the Minister for addressing my amendment. Does he accept that it is essential that we avoid a declaration from the European Commission at some point in the future that data protection arrangements in the UK are not adequate, and we must therefore secure an adequacy determination? Does he also accept that not having article 8 somewhere on the UK statute book is an invitation to those elsewhere to find against us when that crunch decision comes?
The right hon. Gentleman is absolutely right that we need to be very careful to navigate our post-Brexit period in a way that minimises litigation. I cannot see that such litigation would be good for the UK and its taxpayers, and it is not good for sustaining a healthy relationship with our EU partners.
We do, of course, have article 8 in the ECHR, which is directly incorporated via the Human Rights Act, but, as I have said, if the right hon. Gentleman feels that any elements of it are not properly transposed into UK law when we publish the memorandum, the correct place for that to be considered will be the Data Protection Bill. The wider point is that the removal of the charter from UK law will not affect—
I am going to make some progress, because I have been speaking for over half an hour and Ministers will want to speak again to address schedule 1.
The substantive rights that individuals already benefit from in the UK when their data is processed will be retained under this Bill. As I have pointed out, the charter is not the source of rights contained within it; it was intended only to catalogue those that existed in EU law at that moment in time.
Finally, I want to address the late new clauses tabled: new clause 78, tabled by Tom Brake, and new clause 79. On the impact our departure from the EU might have on equalities legislation, I again reaffirm the commitment I made on day one in Committee to my right hon. Friend Mrs Miller, the Chair of the Women and Equalities Committee, when we discussed this issue at some length. I understand the intention behind this amendment and can reassure the right hon. Gentleman that there will be no reduction in the substantive equalities protections when we leave the EU. Equally, the right hon. Gentleman’s amendment presents some very real practical difficulties, not least his attempt effectively to copy and paste the procedural model used in the Human Rights Act and then put it into this Bill for the equalities purposes.
The Human Rights Act assesses compatibility according to an international instrument, the ECHR, which is not the same. There is not an equivalent that applies to the Equality Act, but I am more than happy to reaffirm the commitment I made to my right hon. Friend the Chair of the Select Committee that the Government will bring forward an amendment before Report stage that will require Ministers to make a statement before this House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act. I hope that reassures the right hon. Gentleman that the Government are serious about addressing the issue he has rightly raised.
New clause 79 suggests a procedural device for incorporating certain EEA-related rules into UK law. This is entirely unnecessary given the wider snapshot of EU law this Bill will take at the point of exit.
I hope I have tackled, or at least have endeavoured to tackle—
As I said at the opening of my remarks, given the intention to address clause 5 in some detail and all the underlying amendments, we have split this up and the Solicitor General will address schedule 1 and all my right hon. and learned Friend’s concerns around Francovich and general principles in due course.
I hope I have tackled hon. Members’ concerns, at least in relation to clause 5 and the charter, and I urge hon. Members not to press their amendments to a vote. This Government and the ministerial team have listened, and we will continue to reflect carefully on all the arguments made today. Equally, the Government believe the exceptions to retained EU law contained in clause 5 are right as we carefully seek to separate our legal system from that of the EU, restore democratic control to this House, and do so in a way that leaves more, not less, legal certainty. I urge hon. Members to withdraw their amendments and to pass clause 5 unamended.
I rise to give my support and that of the Scottish National party to the amendments designed to retain the charter of fundamental rights in domestic law, and those designed to preserve legal remedies for individuals and businesses to enforce these rights in the courts and to be compensated when the rights are breached.
It is heartening to see such strong cross-party support for these amendments. I very much hope that the Conservative rebels will have the courage of their convictions to push these amendments to a vote tonight, despite the unpleasant pressure they have been subjected to as a result of the actions of certain newspapers. That is a matter for them. There are other cross-party amendments on the charter that I am sure will be pressed to a vote if those in the name of Mr Grieve are not pushed to a vote.
Before I address why the SNP supports these amendments, I have a crucial question for the Minister. It needs to be answered, not for my benefit, but for the benefit of the whole House and, indeed, the country. The clause we are debating today revolves around the supremacy of EU law and whether the charter will be part of domestic law after exit day, but, as has already been mentioned in our debate, this morning the Prime Minister’s official spokesman told a routine Westminster briefing that the Government expect
Are those on the Treasury Bench aware of that statement? Can they explain to us how it impacts on what we are debating today? If the Prime Minister is of the view, as her spokesman has said, that the Court of Justice’s role will be unchanged during a two-year implementation period from exit day, not only is the rather ridiculous amendment brought to this House by the Government last week defining exit day rendered utterly meaningless, but much of the debate we are having this afternoon about clause 5 and, indeed, the debate we had last week about clause 6 and other clauses are rendered meaningless.
I am not trying to score a party political point here. This is a matter of legal certainty which is of the utmost importance to all UK citizens and to UK business and universities. Which is it? Is what the Prime Minister’s official spokesman said this morning correct? Is the Court of Justice’s role going to continue unchanged during a two-year implementation period and, if so, how does that impact on what we are debating today? I am very happy for the Minister to intervene on me to clarify that, but if he wishes to take advice, I am sure that his ministerial colleague the Solicitor General will clarify that vital point and the impact of the Prime Minister’s statement this morning on the entirety of this Bill, and most particularly the clause we are debating.
In any event, if this somewhat holed-beneath-the-waterline Bill is to survive and limp on, the SNP commits itself wholeheartedly to the amendments to keep the charter of fundamental rights and to keep individuals’ and businesses’ rights to sue and enforce and make those rights meaningful, because that is what the individual right of enforcement and Francovich damages are all about: making rights meaningful. For anyone who has studied law, a right without a remedy is a pretty useless thing; it is trite law.
The Scottish Government published their programme for government earlier this year, and reiterated their commitment to international human rights norms. It is important to remember that human rights are not wholly reserved by this Parliament when it comes to the devolution settlement, so what the Scottish Government choose to do could be very important, particularly if Scotland is to be taken out of the European Union against her will. My colleagues in the Scottish Government have emphasised that it is essential that existing safeguards are not undermined by Brexit, and that the rights enjoyed by everyone in these islands, as EU citizens, need to be permanently locked into a future deal. That is why we oppose the removal of the EU charter of fundamental rights from domestic law, and why we opposed the Government’s previous desire to repeal the Human Rights Act.
I was interested in the Minister’s reiteration—in fairness, this has been reiterated by the Government several times during this debate—that there is no intention to withdraw from the European convention on human rights. But, as I have already said, rights without remedies are not much use. The great thing about the Human Rights Act was that it gave UK citizens the opportunity to enforce their rights by raising actions in the courts of their own jurisdiction. Will the Minister—or the Solicitor General, when he gets to his feet—confirm the Government’s intentions regarding the Human Rights Act?
I think I have already said this, but I am very happy to reaffirm for the hon. and learned Lady that the Government have no plans to withdraw from the ECHR, or to revise or repeal the Human Rights Act.
I am grateful to the Minister for that. I had understood that the revision and repeal of the Human Rights Act was on the back burner, but Members on this side of the House and many Conservative Members can celebrate a great victory if that plan has now been dropped and the Government are backing down on that one. Unfortunately, I very much doubt that we will be in the mood for celebration as we are facing the Government’s chaotic plans for Brexit, and that is what we have to discuss today.
My colleagues in the Scottish Government in Edinburgh have recently reiterated their firm commitment to the idea that international human rights norms should not just be signed up to by the jurisdictions of these islands, but should be given direct effect by giving individuals and businesses the opportunity to raise and realise their rights in the courts. The Scottish Government have indicated that they intend to
“implement the socio-economic duty in the Equality Act 2010 by the end of this year, placing a requirement on key parts of the public sector, including Scottish Ministers, to have due regard to reducing the inequalities caused by socio-economic disadvantage when taking strategic decisions. This is a key component of our approach to tackling poverty.”
The Scottish Government also committed in their programme for government to look at how they can further embed human, social, cultural and economic rights, including the UN convention on the rights of the child. That is an indication that the Scottish Government’s direction of travel on international human rights norms is very different from the UK Government’s. It reflects the fact, as I said earlier, that human rights are not a reserved matter save in so far as the repeal or amendment of the Human Rights Act is concerned. Indeed, the Scottish Government have the power to legislate to protect human rights and intend to do so.
That leads me to comment briefly on new clause 78 and a new right in relation to equality that is intended to apply across the United Kingdom. There is a laudable intention behind the new clause, but its application in Scotland, Wales and Northern Ireland would require discussion with and the consent of devolved Administrations, if it were to be incorporated into the devolution statutes. The Scottish Government’s and Scottish National party’s position on human rights also reflects the wishes of voters in Scotland, who voted to remain in the EU by a considerable margin and who voted in considerably larger numbers for parties that support international human rights norms than for those that do not.
It is about time that this Parliament started to recognise that views across these islands are quite divergent from the sort of Brexit that the Government are proposing. The cross-party amendments would go some way towards the aim of keeping us in the charter and keeping remedies for UK citizens. Of course, that is not to say that there are not many people in England and Wales who voted to leave and also wish to see the charter of fundamental rights preserved. We heard, if I may say so, a typically eloquent speech by the right hon. and learned Member for Beaconsfield, who said that the rights that have come into our law as a result of our membership of the European Union have done good across these islands, particularly for the most vulnerable people in our society. One would hope that we could agree on that on a cross-party basis.
A lot of misinformation is going around about the charter, and that stems from a resistance to the idea that it is either desirable or necessary for international human rights norms to have direct effect in the United Kingdom. We have to recognise that the logical result of that antipathy to giving direct effect to international human rights norms is to take away rights, and the ability to realise them, from British citizens and businesses. That is surely not a desirable state of affairs, no matter which side of the House one sits on.
As we have heard from a number of hon. Members, the Government have tried to reassure us that importing EU law without also importing the charter will make no difference to the protection of rights in the various jurisdictions of the United Kingdom. Indeed, they state in paragraphs 99 and 100 of the explanatory notes to the Bill that it is unnecessary to include the charter as part of retained law because it merely codifies rights and principles already inherent in EU law. That is what the Minister told us from the Dispatch Box. As others have said, that rather begs a question: if it is just a simple codification, why bother not incorporating the charter?
As I pointed out in an intervention on the Minister, the Exiting the European Union Committee heard evidence from a senior legal academic, who said that there will be legislation in retained EU law that refers to the charter, so there will be a lack of legal certainty if the charter is not there. The Minister would no doubt say, “Yes, but the general principles will still be there.” But the charter existed as a codification of the general principles in order to make them more readily accessible.
I am interested to see the list that the Minister is going to produce on
“This week Parliament will be asked to vote on whether to incorporate the EU’s Charter of Fundamental Rights into UK law. If Labour, acting with others, manage to force this through there will be legal chaos. Not only will it hand new and long lasting powers to UK courts”,
but it has also
“crept into many areas of UK law, from asylum to even national security.”
So there we have it in the words of at least one Conservative Member. There are things in the charter of fundamental rights that some on the Government Benches do not wish to be incorporated into our law.
I am flattered that the hon. and learned Lady is quoting me in the Chamber. Does she not find it odd that the effect of her proposals would actually be legal chaos and uncertainty? We would have interacting rights regimes, with the convention through the Human Rights Act, and the charter. This is precisely the time at which the Bill is designed to provide legal certainty for businesses, individuals and other Governments.
With respect, we have all that at present. The status quo is that the ECHR and the charter of fundamental rights are part of domestic law, and I do not see any legal chaos in our courts, although I do see an awful lot of political chaos.
Does the hon. and learned Lady agree that there is some kind of misunderstanding here, and that it is the gaps that we are addressing? We are not creating uncertainties. The situation proposed by the Bill will create gaps, and that is the main problem that we are addressing.
The hon. Lady makes her point eloquently. Some of those on the Government Benches say that incorporating the charter into domestic law would cause uncertainty and chaos, but our point is that not incorporating it while we are incorporating everything else at the point of the snapshot is what will cause uncertainty. I do not know whether I would go so far as to call it chaos. After all, there is going to be so much chaos around after Brexit, and a difficulty in establishing the difference between fundamental rights and general principles might not be the biggest example of that chaos. However, there will be legal uncertainty. The Minister himself said that one of the Government’s guiding purposes in the legislation was to avoid legal uncertainty.
Indeed it has; that is its job. In particular, judges at the higher level such as the Supreme Court and the High Court of Judiciary in Scotland are used to grappling with the complex interplay of international treaties and international human rights protections.
I mentioned earlier that the Exiting the European Union Committee had heard evidence from a variety of witnesses about the effect of not incorporating the charter. I have to be honest and say that some of them were happy for the charter not to be incorporated, but even they said that something would be lost by its going. Hon. Members on both sides of the House have given a number of examples of what would be lost, and I would like briefly to add to that list.
Just before the hon. and learned Lady comes to her list, may I add one more item to it? The Government have made great play of their commitment to the Good Friday agreement—the Belfast agreement—and stated that they are going to uphold all their obligations under it. One of those obligations relates to respect for human rights; indeed, that element has quite a large chapter in the agreement. Part of that obligation involves having, at the very least, an equivalence between human rights protections in Northern Ireland and in the Republic of Ireland. It is obvious that when the UK leaves the European Union, Northern Ireland will not have the protections afforded by the charter that we are discussing, but that the Republic of Ireland will. I hope that the hon. and learned Lady will therefore press the Government to fill that gap in Northern Ireland’s protection of fundamental rights.
Indeed I will. The hon. Lady has, in her usual clear and incisive way, anticipated something that I was going to come to in a minute. Perhaps I will deal with it now, before I come to my list. As she says, the protection of fundamental rights is absolutely central to the Good Friday agreement, and has its own section in that agreement. The fact that the Bill will take the charter out of retained law raises concerns in this respect. The Good Friday agreement requires at least an equivalent level of protection of human rights in Ireland and Northern Ireland. If the charter is taken out of domestic law, there will be no such equivalent protection of human rights in Ireland and Northern Ireland, because once the UK withdraws from the EU, Northern Ireland will no longer benefit from the charter’s protections. This could pose significant problems for the Good Friday agreement—[Interruption.] The Solicitor General is shaking his head—
I am listening with great care to the hon. and learned Lady’s remarks and to the interventions that she has taken. Let us not forget that the Good Friday agreement was written in 1998, and that the charter of fundamental rights appeared in 2007. It is the European convention on human rights that is the key governing principle here, not the charter.
I beg to differ. The Solicitor General is right about the dates, but as we know, the charter is merely a codification of various general rights and principles. We have significant concerns about not incorporating it, notwithstanding the little list that the Minister is going to give us on
It is not just my view and that of Lady Hermon that there will be an issue for the Good Friday agreement. A briefing produced by none less than the Bingham Centre for the rule of law has raised the question of whether non-retention of the charter will impact on Northern Ireland. It has raised a series of questions, which I have just paraphrased, and I look forward to the Solicitor General answering them in more detail, rather than merely saying that there is not a problem. If I may say so, this illustrates the whole problem with the British Government’s approach to the unique situation in which Northern Ireland finds itself as a result a Brexit. There is a constant parrying, and saying, “There is not a problem, it can all be sorted out. It will all be fine.” This is what is causing us problems in the negotiations with the EU27, and particularly with the Republic of Ireland. Mere platitudes and assurances are not enough. We need some detail as to why removing the charter of fundamental rights from domestic law in the United Kingdom and Northern Ireland will not pose a problem for the Good Friday agreement. However, I am sure that as we have the Solicitor General here, we will hear that detail later.
I wonder whether the hon. and learned Lady recalls the Mostyn judgment of 2013, in which a very senior member of the judiciary expressed astonishment that there was direct applicability of the charter in UK domestic law, given that the protocol had been attached to the charter when we originally signed up to it. Given the rather temporary nature of the charter rights, how can it be so fundamental to the Good Friday agreement? It did not exist in law in this country, and was not recognised by the judiciary, even after it had been brought into force in the treaties.
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.
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.
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.
The number of cases in which the charter is cited— 248 in England and Wales—does not mean that it has had the slightest practical effect on the outcome of judgments, as the hon. and learned Lady knows quite well.
I do know that, because I have sat through cases—so, too, has the hon. and learned Gentleman, I suspect—in which case law has been cited and it is hard to see its relevance. However, Dr O’Brien made her point advisedly, having taken care to prepare for the Select Committee hearing, so it is not an isolated point—as Seema Malhotra has indicated, there was quite a bit more to her evidence. She touched in some detail on data protection issues, but I will leave it to other Members to discuss those, because Stephen Timms had a very interesting exchange with her on these issues and will no doubt address them later, because he has tabled an amendment.
The most familiar rejoinder of a judge when one cites the charter in the High Court is, “What does it add?” The most familiar response of counsel is, “Nothing.” The most familiar course of the judge thereafter is to ignore it completely, in 95% to 99% of cases.
The hon. and learned Gentleman is no doubt commenting on the English jurisdiction, and I cannot comment on that because I have not appeared here, except in the UK Supreme Court. But certainly in Scotland it is sometimes referred to, and sometimes it is relevant and sometimes it is not, but that applies to all references made in cases. However, to counter his point, there are hard examples of where the charter has made a huge difference. The right hon. and learned Member for Beaconsfield referred earlier to the Benkharbouche case, which concerned the rights of an employee in an embassy in London, and another against the embassy of the Republic of Sudan. The individual complained of unlawful discrimination and a breach of working time regulations, and she would have been denied a remedy had it not been for the charter.
One may forget Dr O’Brien’s evidence about the number of references if one wants to, but look at the hard examples of where the charter has made a difference. We have also heard about the tobacco packaging legislation. There are many examples relating to data protection, perhaps the most celebrated one being the litigation of the Secretary of State for Exiting the European Union.
I hope that the hon. and learned Lady can help me with a point of confusion that I am struggling with—I hope that I do not embarrass myself in front of more learned Members of the House. Is it not right to say that the application of charter rights in the European Court of Justice creates case law that, under this Bill, we are saying has UK Supreme Court-level status, so in effect are we not copying across ECJ case law on the charter into UK common law while not copying across the charter, and is not that nonsensical?
The hon. Gentleman is absolutely right, and that point was also made by Dr O’Brien in her evidence. If in the snapshot of retained EU law that will be taken on exit day we are taking across all sorts of aspects of EU law that refer to the charter, then it is nonsensical not to take the charter across as well, particularly if the Government insist on sticking to what they say in the explanatory notes, which is that the charter does not really add anything that is not already in the general principles. What it does add is clarity.
The process of leaving the European Union is already extremely complex and unpredictable, and the removal of the charter of fundamental rights simply risks creating an additional level of legal uncertainty and instability. So why do it? Why not reconsider? The Government have bigger issues on their plate, such as the Prime Minister’s spokesperson’s admission this morning that we will be in the European Court of Justice for another two years after exit day, which as I said earlier renders a lot of what we are discussing this afternoon somewhat irrelevant—at least in the short term. The Government have bigger fish to fry, so why remove the charter? Why take away from ordinary British citizens and businesspeople the right to sue to enforce their rights and to realise damages if their rights have been breached? Why do that unless it is part of a wider agenda—one bigger than Brexit—that is about rolling the United Kingdom back from its adherence to international human rights norms? The Government need to think carefully about the message they are sending out.
It was reported just last night that a distinguished British jurist who had been put up to be a judge at the International Court of Justice has had to withdraw from the race, because other countries in the UN are keener on somebody from another country. Even as a Scottish nationalist, I can see that that is a setback for the United Kingdom’s world standing. For so long as Scotland remains part of the United Kingdom, I would like it to be an outward-looking country—indeed, I would very much like the rest of the UK to continue to be outward looking even after Scotland leaves the UK —but that sort of thing does not inspire confidence in the British Government’s adherence to international human rights norms. I invite the Government to think again, and I look forward to hearing their response to several questions that I have raised this afternoon, the most important of which relates to the statement by the Prime Minister’s spokesperson, but equally as important is the situation of Northern Ireland.
As I have already suggested, both Tony Blair and Lord Goldsmith strongly resisted the charter of fundamental rights being made part of UK law, as made clear by my European Scrutiny Committee in its report of April 2014, which anyone can read, so it is impossible to understand why the Labour party has now taken retaining the charter as its position—although as someone said to Alice said in “Through the Looking Glass”:
“I’ve believed as many as six impossible things before breakfast.”
The Conservative party categorically ruled out bringing the charter into UK law in our manifesto, and we also voted against the Lisbon treaty. That included the charter, which the European Court of Justice has since ruled did apply to us, because it includes the application of EU law as applied by the European Court of Justice, including assertions of constitutional supremacy over our Acts of Parliament and the vicarious power to disapply those Acts. An example of that—I mentioned this in my exchange with my right hon. and learned Friend Mr Grieve—is the striking down by the House of Lords of the Merchant Shipping Act 1988 in the Factortame case. For all those reasons, it would be unconscionable to include the charter in this Bill.
With great respect to those who have tabled amendments, the European Court of Justice’s interpretation and the case law, which is so greatly liable to EU jurisprudential elasticity by the Court itself, would thereby enable the UK Supreme Court to disapply Acts of Parliament. That is absolutely fundamental, and it would also be completely undemocratic. It has already happened under the present aegis in the case of the 1988 Act, but it would happen more and more frequently, and we would simply have to accept it, because it is not a question of opinion; it is a question of law and of fact.
It is for the European Court of Justice to continue to interpret what the charter of fundamental rights actually means within the European Union, so if the charter was incorporated into our law, what relationship does my hon. Friend think would exist between our Supreme Court and the interpretations that would continue to be developed in the European Union?
The Supreme Court would be applying the European interpretation in that context, and I simply say that it will involve disapplication of law. It is a matter not of assertion but of fact and law that that is precisely what will happen.
I urge my right hon. and learned Friend the Member for Beaconsfield and others not to press their amendments on the charter, because to press them would be totally unacceptable. I refer to what I have alluded to already, the principle set out by Lord Justice Bingham in chapter 12 of his magisterial book on “The Rule of Law and the Sovereignty of Parliament?”, in which he publicly criticised the attitude of Baroness Hale, now President of the Supreme Court, and Lord Hope of Craighead in suggesting that the courts have constitutional authority, as against an Act of Parliament. With respect to the whole question of parliamentary sovereignty and the issue of the courts, he says that various remarks had been made but
“No authority was cited to support them, and no detailed reasons were given.
I cannot for my part accept that my colleagues’
observations are correct... To my mind, it has been convincingly shown”— by Professor Goldsworthy, one of the greatest authorities on this subject—
“that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot by themselves change it…
What is at stake”— said Professor Goldsworthy—
“is the location of ultimate decision-making authority…
If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”
Moreover, Lord Bingham went on to say that they would then be transferring the rights of Parliament to judges:
“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”
With some irony, the Bingham Centre for the Rule of Law has put some of the contrary arguments.
My hon. Friend is making some excellent points about parliamentary sovereignty, but I am not sure the point has yet been made that there has been a cosy consensus in this debate so far that everything about European human rights is wonderful and that we want to transfer those European human rights into our own law. Actually, many of us think that the advancement of European so-called human rights has been to the detriment of the rights of other people, particularly religious people, to find their own space, because European equality laws trump all other laws. When we regain parliamentary sovereignty, in this House and through our democracy, we can start asserting the right to real human rights.
I agree with my hon. Friend’s general proposition, to which I would add that it is up to us to make our own laws. We can listen to the arguments, we can make the amendments and we can recognise human rights, and all the other things, as I did with the International Development (Gender Equality) Act 2014. I entirely agree with his sentiment for that reason.
Lord Bingham went on to say:
“We live in a society dedicated to the rule of law”—
I note the reference to that by my right hon. and learned Friend the Member for Beaconsfield—
“in which Parliament has power, subject to limited, self-imposed restraints, to legislate as it wishes;
in which Parliament may therefore legislate in a way which infringes the rule of law;
and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail to give effect to such legislation if it is clearly and unambiguously expressed.”
The Conservative party opposed Lisbon, which conferred treaty status on the charter. I say this to my right hon. and learned Friend the Member for Beaconsfield with all respect, because we get on pretty well and we have had several chats over the past few days, but I trust he will recall his opposition to the Lisbon treaty and, therefore, to the charter when he was shadow Attorney General—he followed me in that post. More specifically, I hope he will recall the evidence he gave to the European Union Committee of the House of Lords, which was cited in its report published on
I know he knows what I am about to say, but may I finish the quotation? He said that
“the European Court of Human Rights is a very benign institution, whereas I happen to think that the European Court of Justice in Luxembourg has predatory qualities to it that could be very inimical to some of our national practices”.
I would suggest that those are in respect of the question of disapplication of Acts of Parliament.
May I gently say to my hon. Friend that although this is fascinating, we are actually talking about retained EU law which will not be subject to the jurisdiction of the Court of Justice of the European Union? I do have criticisms of the CJEU and the way it has operated at times, and I have had the pleasure, or misfortune, of appearing before it. Its teleological principles and its purposive interpretation of law have often been challenging in our national setting, although it is not a pariah court and by international standards it is a pretty good tribunal. So I stand by the points I made on that occasion, but they in no way diminish or undermine anything that I have said here this afternoon.
I simply add that I understand this with reference to the European Court in its existing situation, because not until we leave the EU are we able to avoid the jurisdiction of the European Court, so that applies at least for the next two years and probably for the two after that. God knows what they will do in the meantime. My European Scrutiny Committee has been holding meetings already on the European laws that have been proposed since the general election, but the problem is—
No, I will not, because, as the Chair will appreciate, I have taken a lot of interventions, as I did last time, when I took six or eight. It is impossible to get the arguments out in reply to my right hon. and learned Friend the Member for Beaconsfield, with whom I have been discussing this for an extremely long time—for the best part of 20 years—if I am constrained in this way, so I am not going to take any further interventions.
What lies behind these amendments is not only the charter itself, but the whole role of judicial interpretation and jurisprudence in its application to the UK; by virtue of the way in which the amendments would apply, the Supreme Court would inherit the power to invalidate and disapply Acts of Parliament. This is a matter of the gravest constitutional significance and it goes to the heart of the stability of this country and its rule of law. In turn, that goes to the heart of our democratic system and the right of the British people to govern themselves, whichever party they come from, in respect of how they vote in free elections, exercising their freedom of choice as to whom they decide to govern them until the next general election.
All this is intrinsically bound up with the claimed virtues of the European Court itself—it is not impartial. As I have said in the previous debate, when the European Court adjudicated on the Van Gend en Loos case and Costa v. ENEL in the 1960s and early 1970s, and the Internationale Handelsgesellschaft case, it was doing so on its own initiative, without any basis in EU treaties, until the Lisbon treaty, which we on this side of the House, including my right hon. and learned Friend, opposed. That is what did this. We opposed it. He opposed it. I simply make that point to put it on the record.
This Lisbon treaty, as the European Scrutiny Committee also demonstrated, was the Giscard d’Estaing proposal for a European constitution by any other name. It is part and parcel of the other characteristic of the European Court, which is the drive towards political integration and its interpretation of law by the purposive rule, even when the wording in question is neither obscure nor ambiguous. Furthermore, many different purposes may, from time to time, be in conflict with one another, but the driving force for them is the integrationist road map from which it never deviates and never will. It is the ultimate engineer of European integration. Equally, it has adopted a method of interpretation that neutralises the principle of the conferral of powers that were meant to be limited under articles 4 and 5 of the treaty on European Union. By doing so, it has extended the range and effect of European law by leaps and bounds. With that comes the extensions of competence, which in turn are everlastingly overarching and limitless. The European Court has never once annulled a general EU legislative act, except on one occasion, and when it did so, it was re-enacted almost immediately. It is permanently on the march in favour of political integration and by any standard is therefore more a political than judicial court.
The interaction of case law and the effect it will have in relation to our Supreme Court is of enormous importance. Professor Ekins, an associate professor of law at the University of Oxford, recently gave evidence to the Exiting the European Union Committee. He said in written evidence:
“Responsibility for deciding whether to repeal or amend EU-retained law should be with political authorities not with courts and it is unwise to maintain the Charter to allow for challenges to this law.”
He went on to say:
“The Charter is a major destabilising legal source.”
Later in his written evidence, he said:
“It would be much better, and safer, to remove the Charter from our law on exit day.”
So there we are.
It would be totally unacceptable to include the charter formally at the time of our repeal of the European Communities Act and effectively to provide for our own version of the European Court to apply the charter and empower the Supreme Court to disapply enactments. In any case, there are many provisions in the charter that expressly involve EU laws and so are themselves inconsistent with our leaving the European Union. The proposed changes to the Bill would be not only incongruous but contradictory.
The European Court is under attack from substantial, experienced and external authorities. For example, Judge Dehousse is a former European Court judge of 13 years who had previously been an adviser to the European Parliament, Commission and Council. In his farewell address to the European Court of Justice he expressed withering criticism of the Court, using expressions such as,
“everything in this episode was shocking”.
He also said:
“In the name of hierarchy, this nonsense was maintained for many years.”
He referred to the lack of consultation and to questionable and secret letters that left him “speechless”, and ended with the accusation that
“the Institution’s governance system remains out-dated, obscure, and devoid of sufficient controls.”
In my judgment, the further we keep away from the European Court, the better.
Judge Dehousse made another speech in 2017 on the future role of the ECJ in the context of Brexit, in which he said that the ECJ’s role in relation to the citizens’ rights issue is “dangerous”. He said that article 50 was invented
“to show that the EU was not a prison”,
and that the guidelines for the negotiations include
“a connection with the desire to keep some aspects of EU law applied in the UK”,
which he said
“could create an incredible legal vipers’
He said that the UK would become the only third state to submit to the jurisdiction of the European Court, and concluded by saying that
“one wonders how this is considered acceptable for a sovereign state.”
Such comments demonstrate a real problem with the EU guidelines because, as he points out and as is clear, the EU institutions do not seem to be able to accept the massive change that the triggering of article 50 made to the European Union itself.
On amendment 10, the general principles are legal principles recognised by the European Court, which I just described in the words of Judge Dehousse, and have been regarded by the EU as essential to the EU legal order. They are the EU’s primary law, with the same status as the treaties with primacy. As it stands, under schedule 1, which we are debating with this group, the European Court would no longer be able to disapply UK Acts of Parliament or other legislation on the grounds that they conflicted with the general principles, and nor could they be made the basis of judicial review.
Given the referendum and the Second Reading of the repeal Bill, for which my hon. Friends, including my right hon. and learned Friend, and some Opposition Members voted, I do have the greatest difficulty in understanding how it can be proposed in amendment 10 to schedule 1 to
“leave out paragraphs 1 to 3”.
Therefore, despite the fact that my right hon. and hon. Friends voted in favour of the Second Reading of the Bill, this amendment attempts to protect retained EU law from challenges on the grounds of a breach of the general principles of EU law, and that seems unacceptable. The general principles under the Bill would only be part of domestic law if recognised as such by the European Court before exit day. The Bill would remove the jurisdiction of the European Court over the UK after Brexit.
Clause 6 (3) states:
“Any question as to validity, meaning or effect of any retained EU law” must be decided by our domestic courts, including the Supreme Court.
In effect, therefore, the amendment seeks to make our courts continue to follow the general principles of EU law and ECJ jurisprudence, increasingly making us conform to EU law, particularly to the general principles of that law and the outpourings of the European Court, enabling the laws passed in this Parliament to be challenged where it diverges from EU law. That would include many matters relating to national security and terrorism, which EU case law already covers.
For all those reasons, I strongly urge my right hon. and hon. Friends—I say this with all sincerity—not to pursue these amendments. If those amendments are pressed, I call on the House to reject them. I say that because, as my right hon. and learned Friend the Member for Beaconsfield has already conceded, they are technically defective and would not make sense.
As I said, the drafting of amendments is quite a complex matter, and I am the first to accept that an amendment may not meet the exact needs of the Government, even if the Government were to seek to accept it. None the less, the position is very simple and I can only repeat it: amendment 10 will be put to the vote unless the Government give some satisfactory assurances that they will respond to it.
Let me conclude. I do hope that my right hon. and learned Friend will not do what he has just suggested. I say that because those measures are defective not only in the way that he has described, but in respect of paragraph 5 of amendment 10. The provisions refer to paragraphs 1 to 3, but there are also difficulties in relation to paragraph 5, which I will not go into now because I have made all my remarks.
I sincerely urge my right hon. and learned Friend to listen to the arguments and to accept the fact that, for very good reasons, it would not be appropriate to press these amendments to a vote.
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 the digital parts of the economy.
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, and it is this: 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 Joanna Cherry and my hon. Friend Seema Malhotra, we heard about the evidence given by Dr Charlotte O’Brien, a senior lecturer at York Law School, to the 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 Tom Watson and Mr Davis, now the Secretary of State for Exiting the European Union.
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.
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. 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 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
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.
The Minister, in responding to an earlier intervention prompted by a comment from the Solicitor General, suggested that article 8 of the European convention on human rights was good enough. That certainly is not correct, as it sets out the right to respect for private and family life. While I can see that there is some sort of vague connection, article 8 of the ECHR does not even mention data. If the Government think that they are going to get the European Commission to confirm that our data protection is adequate on the basis of article 8 of the ECHR, they really are in for a very rude shock in due course. It does not cover that at all.
Mr Grieve suggested that a way forward could be to incorporate the words I read out from article 8 of the charter of fundamental rights in a Bill, thereby giving them a status on a par with the Human Rights Act. Certainly, if the Government were to move in that direction, it would meet the aims of my amendment. If this is no longer spelled out clearly in UK law, there will be some uncertainty about how UK data protection law will work after Brexit, and that would be unfortunate.
However, there is a far more serious issue at stake than a bit of difficulty in how we interpret the law in future, because this lack of clarity would put at risk the outcome of the European Commission’s determination of whether data protection regulation in the UK is “adequate”—a technical decision that the Commission will be called on to make in due course. Failure to secure such a determination would be catastrophic for the UK economy.
Does my right hon. Friend recognise that if the European Commission makes a decision on equivalence, that recommendation has to go to a committee of information commissioners from the 27 EU member states, and it is for them to decide whether there is equivalence? As the Institute for Government says, when making their decision, they will check to see whether data adequacy is met by including a respect for fundamental rights and a scope for judicial redress. Both redress and respect are mentioned in the EU charter of fundamental rights, are they not?
My hon. Friend, who is a lawyer specialising in these matters, is absolutely right. I understand that the European Parliament also has a role in all this, and so there is a political dimension to it as well.
The position at the moment is that as an EU member state we can exchange personal data freely with others in the EU—Governments, businesses and individuals. The Under-Secretary of State for Exiting the European Union, Mr Baker, told the Select Committee that the Government would seek to include data flows in the wider negotiated agreement for a future deep and special partnership between the UK and the remaining member states of the EU. I welcome that confirmation. However, as we keep on being reminded, we might not get a deal, so what then? If we do not get a deal and an adequacy determination, it will be unlawful to send personal data from the European Union to the UK, and, at a stroke, there will be no lawful basis for the continued operation of a significant chunk of the UK economy. I hope we all agree that we must avoid that outcome at all costs. Already, we hear that hi-tech start-ups that need access to personal data are starting to look at Berlin in preference to London because of the possibility that that problem might, in due course, arise.
The Government have argued that because we are fully implementing the GDPR, the Commission will be unable to find fault with UK arrangements even if we lose article 8. I have to say to Ministers that the UK technology sector does not agree, and my judgment is that it is absolutely right to be worried. The danger is not a theoretical one, as we see in the case of Canada. A very long-running series of negotiations has led to a pretty ambitious agreement between Canada and the EU, but Canada has only got a partial adequacy determination.
If we ended up with only a partial adequacy determination on data, it would be extremely damaging for the UK economy. The US arrangements known as “safe harbour” were famously struck down as inadequate by the European Court of Justice in a case brought by an individual Austrian citizen in 2015. That caused an enormous upheaval and led to the very rapid introduction of new arrangements in US regulation called “privacy shield”, which I understand are being called into question in a new case at the European Court of Justice by the same Austrian citizen.
The European Court of Justice is particularly sensitive about UK bulk collection of personal data. That issue featured prominently in the Appeal Court case, which we have touched on several times in this debate, brought by the right hon. Member for Haltemprice and Howden. The Court considered whether the powers in the Data Retention and Investigatory Powers Act 2014 went too far, allowing the state to breach personal data privacy, and concluded that the powers introduced by the then Home Secretary went too far. Article 8, specifically, was the basis for that conclusion. If article 8 is no longer in UK law, it may make life easier for future Home Secretaries who wish to do the kind of thing that the previous Home Secretary tried to do, because they are much less likely to be found in breach. That rather bruising experience at the hands of the right hon. Member for Haltemprice and Howden may well be one reason why the Prime Minister wants to keep the charter out of UK law.
My right hon. Friend is making a very powerful case. The Select Committee heard evidence from the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe, who said that the Government would seek a data adequacy agreement. Like him, I would welcome that, but it is not entirely clear whether that can be achieved, should there be a deal.
I had always understood the data adequacy decision to be a regulatory decision of the Commission in respect of a third country, as my right hon. Friend has made clear in his previous remarks. Therefore, if there is no agreement or it is not legally possible to override the decision with an agreement, all the points that he has made—that the Commission has to decide, and that the decision is subject to legal challenge and could go to the Court or to other member states—merely demonstrate how much is at stake when it comes to getting this right.
I absolutely agree with my right hon. Friend. My understanding is that the shortest period in which a data adequacy agreement has ever been achieved is 12 months, in the case of Japan. Very often, these things take a good deal longer.
By exactly the same token, and precisely because it may be a source of satisfaction to Home Office Ministers, excluding article 8 will constitute an invitation to the European Commission and the European Parliament to find fault with UK data privacy regulation. The cases brought by the right hon. Member for Haltemprice and Howden and others would not have succeeded if they had not been able to rely on article 8. Those who look at these matters on behalf of the European Union will have no doubt in their minds, as far as I can see, that that is the case.
My right hon. Friend is making an excellent case on a very complicated set of issues. Does he agree that the conclusion we should draw from the points he has made and from the observation I am about to make, which is that this has so far been a very lawyerly discussion, is that this will end up being a highly political decision? Whatever the rights and wrongs as expressed by the lawyers today, we are politicians and we face a political set of choices, and we are absolutely offering those who do not have our best interests at heart the opportunity to frustrate us in future. It is a very risky endeavour, and it would be much easier to keep the charter.
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, Tech UK, 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.
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 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
There was a bit of an exchange in one corner of the Chamber when my right hon. Friend 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 the Report stage by
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.
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 was a groundbreaking piece of legislation that 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.
I wanted to touch on two aspects of the thoughtful speech of my right hon. and learned Friend Mr Grieve. My hon. Friend the Minister has dealt with many of the points that arise in clause 5, and we will hear later from the Solicitor General, who will deal with schedule 1. I shall deal with both provisions, as I will have only one opportunity to speak. I hesitate to disagree with my right hon. and learned Friend the Member for Beaconsfield, but I do not think he was entirely right about equality rights in our legislation being underpinned by a European origin. I would draw on an example that I know better than others: the rights for disabled people in our legislation. Although those are now incorporated in the Equality Act 2010, we first introduced them in their full breadth in the Disability Discrimination Act 1995, which was passed by William Hague, now Lord Hague of Richmond, supported by Sir John Major when he was Prime Minister. That was derived not from measures with a European basis but from the Americans with Disabilities Act, which William Hague went and studied and looked at how we could introduce its provisions in UK law. The entire measure was copied and put into the Equality Act when the Labour Government consolidated equality rights in one piece of legislation. I guided the legislation through Committee as a then Opposition spokesman. It is simply not the case that all our equality rights derive from European legislation. In fact, a considerable number are domestically generated or are based on examples around the world.
My right hon. and learned Friend’s speech highlighted some important issues, and he teased them out very well. I would disagree with him, however, about the Court. I am comfortable with the Government excluding the charter but keeping the underlying legislation because the language of the charter is drawn very loosely and is capable of expansive interpretation. Both the charter and the European convention are living documents and are updated as time goes forward. I have no complaint about that but, as my right hon. and learned Friend accepted, the way in which the European convention and the Human Rights Act dealt with that struck the right balance: the Court can make a declaration of incompatibility with primary legislation, but cannot strike down the legislation. It effectively presents the House with a clear challenge either to deal with the legislation or respond in some way to the declaration of incompatibility. I fear that in trying to right a wrong there is potential harm—a point flagged up by my right hon. and learned Friend Mr Clarke. The risk of leaving the charter in place, rather than the underlying rights, is that it allows the European Court of Justice, while it still has jurisdiction over us, or our Supreme Court to expand the scope of the charter into areas where we do not yet think it might wander.
I will come on to data protection later, but article 8 is a very good example. All three points under article 8 are comprehensively dealt with by the Data Protection Act 1998. The one addition is:
“the right to have it rectified.”
A plain reading of that is dealt with in the Data Protection Act. The right to be forgotten, which I believe is the extension the European Court of Justice read into that, is arguably not a right to have it rectified at all. In fact, there is an argument that it is the opposite of rectifying the record: taking facts that are in the public domain and expunging them; deleting and getting rid of accurate information that is not misleading and should be in the public domain. We can argue about whether that is right or wrong, but I do not think it exists on a plain reading of the article. It is an example of judicial expansion and I think it is that mischief the Minister is trying to deal with when he suggests we remove the charter from the underpinning rights and just leave the original rights as existing in European law in place. I think that that is the harm he is trying to deal with.
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.
I will come on to that at the end of my remarks. I followed the right hon. Gentleman’s remarks 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.
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.
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.
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 Vicky Ford in an earlier debate and to the fundamental underpinning of the argument advanced by 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.
That, of course, is one of the arguments that we are going to have about our trade and future relationship with the European Union, and it is pertinent to the points made by the right hon. Gentleman. It is the argument about whether we are to have exact regulatory matching and stick to the letter of each piece of European legislation if we are to trade successfully—whether in goods, services or data—or whether we are to have equivalent legislation which adequately protects and matches those rights, which we may deliver in a different way, but which is equivalent to those rights.
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 have to have regulatory matching.
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.
“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—which is relevant on this data issue—that we will have an unconditional relationship with our EU partners on security and intelligence co-operation: that 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.
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—and 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.
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.
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 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.
Order. I have no power to impose a time-limit in Committee, but I do have the power to advise. We have 20 hon. Members who wish to speak, and if we continue to have speeches of the current length, we will disappoint at least half of them. I therefore advise Members to try to keep the length of their speeches to between 10 and 12 minutes; that is a voluntary instruction.
I rise to speak to new clause 79, which is in my name and the names of my right hon. and hon. Friends and hon. Members from other parties.
First and foremost, I recognise that the UK has voted to leave the European Union. It is an outcome that I did not vote for, but it is the position in which we find ourselves. It is now incumbent on us to strengthen this legislation ahead of our exit from the Union. We can only achieve this fully by recognising what European integration has done for us over the past 40 years, and the ways in which we can help one another.
Before entering Parliament, I was an employment rights lawyer for many years. I represented trade unions and their members for 10 years. More recently, I ran my own business providing maternity discrimination and flexible working advice to mums and families. So I know at first-hand how many of our employment rights come from Europe. As my explanatory statement points out, my new clause would ensure that Parliament is kept abreast of changes in EU provisions regarding family-friendly employment rights and gender equality, as well as committing the Government to considering their implementation.
It is clear that working parents and carers in the UK are struggling. The Modern Families Index 2017, which examined the lives of 2,750 working parents and carers, found that more than a third of working families say that they do not have enough time or money for their family to thrive. Half of parents agreed that their work-life balance is increasingly a source of stress. A third said that work had a negative effect on their relationship with their partner, and a quarter said that it led to rows with their children. One in 10 parents would consider resigning from work without having another job to go to. Research by the Equality and Human Rights Commission shows that 54,000 new mothers in Britain may be forced out of their jobs each year as a result of pregnancy and maternity discrimination. The Fawcett Society, Working Families—the work-life balance charity—and trade unions, among others, continually fight to protect against these types of discrimination.
We have a collective responsibility to ensure that we help to protect the rights of workers and employees among the cut and thrust of the Brexit negotiations. People voted to leave the EU for many varied reasons, but they did not vote to be worse off. Our laws on these matters must be no less favourable than they would have been had the UK remained a member of the EU beyond exit day. Indeed, the EU may well go on to legislate in ways with which we do not agree. The wording of new clause 79 is clear; it is there to inform, not to commit.
As many of my hon. Friends pointed out during the previous Committee sitting, we must make every effort to keep this House fully aware of the advancements that occur in Europe. To be clear, the new clause is not about binding the UK into implementing future EU directives in the family-friendly employment and gender equality space. Rather, it would ensure that Parliament is informed of any developments and would commit the Government to considering their implementation.
In the Prime Minister’s Florence speech, she signalled that the UK and the EU will continue to support each other as we navigate through Brexit. I have much to say on the work that we have collectively achieved in Europe, strengthening workers’ rights, maternity rights and employment practices. For example: the 1976 equal treatment directive established the principle of equal treatment for men and women in access to jobs, training and working conditions; the 1992 pregnant workers directive provided for statutory maternity leave, protected the health and safety of pregnant workers and breastfeeding mothers, prohibited dismissal due to pregnancy or maternity, and introduced paid time off for antenatal care; the 1993 working time directive provided a maximum 48-hour working week, and the right to rest periods and paid holiday; the 1996 parental leave directive provided for the right to unpaid parental leave, as well as time off for dependants; and the 1997 part-time work directive prevented part-time workers from being treated less favourably than full-time employees. All these measures have helped to improve the work-life balance and family-friendly employment rights in the UK, and it is vital that we should not fall behind Europe in the years ahead. To dismiss the last four decades of progress without looking to the future would be to set a dangerous precedent, which fills me with deep concern.
For some time, UK law has been ahead of the EU on certain employment rights—most notably, in my view, in the Employment Act 2002, which introduced the right to request flexible working—but we cannot assume that that will always be the case. Those involved in politics know how quickly things can change. For example, several legislative and non-legislative initiatives relating to the work-life balance and aimed at giving parents more choice, increasing women’s participation in the labour market and allowing businesses to benefit from talent attraction and retention have recently been put forward at EU level. They suggest that parental leave should be paid at a minimum of statutory sick pay levels. This leave is currently unpaid in the UK, and nearly three quarters of young mums and dads told the TUC earlier this year that they were worried about the potential loss of earnings that comes with that. The EU has also suggested carers leave of five days per year, paid at a minimum of statutory sick pay levels. It is worth noting that Carers UK has recommended a right to between five and 10 days per year, to be taken as needed to look after an older, seriously ill or disabled relative or friend in need of care and support.
Further measures to support women’s participation in the labour market are crucial. I do not need to remind hon. Members that the UK’s gender pay gap remains at 18%. There are 11 million working parents in the UK—more than a third of the workforce—yet, as Working Families research shows, many are considering downgrading their career. We cannot have a successful post-Brexit UK economy if such a sizeable proportion of the workforce are unable to reach their economic potential. In addition, the EU is consulting on access to social protection with a view to closing some of the gaps in rights that have opened up between workers on different employment contracts. It is exploring extending the provision of a statement of day one rights to more workers. That is something that Matthew Taylor called for in his review of modern employment practice, and it has been called for more recently by the Business, Energy and Industrial Strategy Committee and the Work and Pensions Committee.
The proposals coming down the line at EU level are in step with the direction of travel that Parliament has indicated it would like to take, and Members have nothing to fear from this new clause. The family-friendly rights that come from Europe are not the bureaucratic, over-zealous red tape that some Members would have us believe. They encapsulate the idea that individuals can be employed without discrimination and treated fairly at work, and that expectant mothers can be given the right to maternity leave without fear of losing their job. At the general election in June, Members of this House stood on a manifesto that pledged to protect workplace rights, and I hope that we will consider those pledges. If I am not satisfied with the Government’s response, I will seek to divide the Committee on this issue later this evening.
I believe that, taken as a whole, the Bill works and will do what it says on the tin. Indeed, I note that no one has come up with a better plan to extricate us from the EU. Furthermore, the recent Government announcement that we should have a Bill to set out the terms of withdrawal and the implementation period will provide a good opportunity to readdress any legal complexities and tweaks that become necessary—for instance, through the proposals on human rights changing due to EU negotiations. However, the detail is what counts, and I think that this legislation is still something of an unpolished gem.
Clause 5 would change the role of the principle of the supremacy of EU law post-Brexit and act as a carve-out to the concept of having retained EU law. Many of the related issues were debated on day one of our Committee proceedings in relation to clause 6. With clauses 5 and 6 in place, once the UK leaves the EU, EU law will no longer be supreme over new laws made by Parliament, and the UK courts will not need to follow European Court of Justice judgments made after exit day. However, it is time for a gripe, Mr Hanson. The Minister’s decision to speak twice on different issues within the same group has been somewhat unhelpful, because it disconnects the various parts of what we are debating. I agree the two groupings might have been preferable, but that was not on offer from the Chair. Having had my gripe, I will now move on.
Amending clause 5 to deal with the requirement of the withdrawal agreement, or even an incompatibility with it, could be activated by use of the Henry VIII powers set out in clause 9, or alternatively by delaying implementation of clauses 5 and 6 using the power in the Bill—a power that the Government currently wish to amend, but which I hope they will not—to set different exit days for different purposes.
Of course, having the position ironed out in the newly proposed implementation Bill could also be an option. This is a likely issue to be considered, as the Prime Minister did, of course, on
“the framework for this strictly time limited period, which can be agreed under Article 50, would be the existing structure of EU rules and regulations.”
The Government have since complained that the EU has been slow to talk about an implementation period, which is certainly concerning. It has been described as a wasting asset, but this should not reduce our urgent need to consider how we would actually implement it.
There is no doubt, from reading the views of the significant number of experts, and from what the Exiting the European Union Committee has heard in evidence, that there is some level of confusion about the meaning of clause 5(1) to (3). I hope that the Government will clarify the position, although I have to say that much of the evidence that the Select Committee received was itself conflicting as to its importance. For instance, witnesses queried the intended effect of clause 5(1): is it only a declaratory statement, or is it setting out the position for the retention of the principle in clause 5(2)?
The point is that the relationship between the supremacy of EU law and retained law is not clear to a number of people. As Professor Mark Elliott noted,
“if retained EU law is domestic law, can it inherit the ‘supremacy’
of the ‘EU law?’”
Would retained law under clauses 3 and 4 benefit from the supremacy of EU law as provided for in clause 5(2)? Professor Syrpis backed that up in his written evidence to the Committee:
“The Bill may be handled in various ways;
for example Clause 5(4) excludes the Charter, Clause 6(2) states that: courts need not have any regard to anything done on or after exit day by the European Court” and schedule 1 excludes Francovich damages.
But it remains unclear whether these exclusions relate only to the retention of EU law in UK law, in clauses 2 to 4, and the interpretation of retained EU law, in clause 6, or whether they also apply to the principle of supremacy of EU law, in clause 5. In effect, I have seen enough indecision on this to think that the Minister needs to expand on his interpretation of the supremacy principle.
Of course, if domestic courts decide on the content and meaning of law post Brexit, then domestic judges are going to have to respond to the challenge, as I am sure they are very capable of doing. Clearly we should help them on their way, so far as possible, by giving clarity on such issues as scoping the supremacy of EU law, although ultimately they will have to judge—
“judges will simply have to do their best”,
as Lord Neuberger put it. Frankly, I do not see what could be put in the Bill that would make this an easy process for judges in practice. However, as Sir Stephen Laws and Dr Charlotte O’Brien told our Committee,
“there is already an existing principle whereby, when deciding on law, the courts will look at foreign judgements and treat them as persuasive but not binding”.
Professor Richard Ekins took this a stage further and thought that the provision is only there
“to make it the case that no one thinks the judges are doing anything wrong if they read them”— meaning Court of Justice judgments— and that
“you could delete the clause and I think the judges would, properly, do the same thing”.
Clause 5(4) exempts the charter of fundamental rights from being converted into domestic law. The first point here is that, whether or not one agrees with the provision, one could ask whether this is the right Bill to insert it into. That argument was made by Paul Blomfield. It states that the Bill is about converting EU law into UK law in order to have a functioning rule book, rather than dealing with policy issues—providing legal certainty rather than reshaping rights. We could have had a stand-alone Bill to deal with that, but I am not convinced that it would have helped the process, or indeed the outcome. In fact, to the contrary, I think that having the benefit of the clause 5 debate running contemporaneously is helpful—if only Ministers had thought the same when grouping today’s amendments.
As for the charter itself, it is a matter of fact that it contains certain extra rights other than those that exist in the Human Rights Act, such as the right to dignity and, as Stephen Timms elaborated, the right to protection of personal data. There is also a wider class of potential applicants, because it includes anyone with a “sufficient interest”. Also, stronger remedies are arguably available in certain circumstances, but all that still has to be within the scope of EU law, and I agree with the Government that the charter will lose its relevance after Brexit. However, in the wider context and while it is important to debate the issue, I have strong doubts that we will be losing much by removing the charter if we get the drafting of this Bill right, because many charter rights will form part of the general principles of EU law, as has been explained, and will thereby be retained by clause 6(7) and schedule 1 for the purpose of interpreting retained EU law.
Retention of the charter would also go against the principle of English courts taking control. There may be initial teething problems, but I note that the Under-Secretary of State for Exiting the European Union, my hon. Friend Mr Baker, told the Exiting the European Union Committee that an EU legal source exists for each charter right, such that judges will be required to look at the underlying source law or rights when considering cases post-exit, rather than the charter. However, I am not sure that that is quite adequate, as it seems as though the Bill will contain no right of action in domestic law based on a failure to comply with any of the general principles of EU law and the courts will not be able to disapply any new law because it is incompatible with any of these general principles, including fundamental rights. Amendment 10, tabled by my right hon. and learned Friend Mr Grieve, would address that by allowing challenges to be brought to retained EU law—law after Brexit—on the grounds that it is in breach of the general principles of EU law.
Does my hon. Friend agree that a different amendment—perhaps a Government amendment on Report—could achieve the same purpose by restricting that part of schedule 1 to dealing with non-retained general principles of law, so that retained principles could form the basis for a right of action?
Yes, my right hon. Friend made that fair point in an earlier intervention. I am happy to say that I am open and willing to hear what the Government have to say on that, and I look forward to the Minister’s contribution later.
The concept of amendment 10 sounds reasonable to me—not least if we are to get rid of the charter—and I shall be listening carefully. However, I agree that the charter has significantly added to the complexity of human rights applications and that in removing the charter the Bill will provide an opportunity to simplify things outside the EU. The Minister has promised to deliver to the Exiting the European Union Committee a memorandum on charter rights, and I note the idea provided by new clause 16, tabled by Mr Leslie, of a report to review the implications of removal of the charter. I would happily accept Ministers’ assurance on that, rather than to legislate for it, and I hope that the document to be delivered to the Committee by
My underlying acceptance of the Bill’s position is premised on there remaining, as now exists, a significant and meaningful body of human rights legislation in this country. That would include common law and the Human Rights Act and would be underpinned by the European convention on human rights. I am therefore pleased that the Minister took the opportunity to accept the need for retention of the ECHR in the post-Brexit period.
I rise to discuss new clause 78 and the amendments that are designed to retain the charter. I listened carefully to what the Minister said earlier, but if the Government are not inclined to retain the whole charter, I urge him at least look again at new clause 78, because it would protect some equality rights.
Conservative Members like to argue that, when Britain decided to join the European Economic Community in 1975, what the British people voted for was an economic union—no less, no more—and that only afterwards the EU became a political union that we should now leave. However, if one looks at the fundamental role played by the British in drafting the European convention on human rights in 1950, this is not true. The convention aimed to protect fundamental freedoms for all Europeans and was driven by British values.
Our post-war involvement in Europe has always been far more than just an economic marriage of convenience. We British have worked diligently with our European neighbours to ensure that anyone joining the union of European countries has to guarantee its citizens’ social, political and civil rights, which we believe are necessary to create an equal and just society—I say that because it troubles me that we sometimes use “them and us” language.
We have essentially created European legislation with our partners. It is ours, and we should be proud; we should not be afraid of it. It is precisely due to that legacy that other countries look to us here in Britain as a global leader on equality rights, and it is why we must ensure today that the Bill does not leave the door wide open for our rights to be eroded if we leave the EU. At the very least, the Bill must replace the equality protections we are currently afforded through EU law.
The Government’s stated intention for the Bill is to safeguard certainty and continuity of the law, including in relation to equality and human rights. It is therefore important to address any potential gaps, and today’s debate has very much been about whether gaps will arise from the process of transposing and amending the whole body of EU legislation and the way we apply retained EU law if we leave the EU.
The Government’s plan not to retain the EU charter of fundamental rights is a big concern. Removal of the charter will affect substantive rights and legal protections for individuals in the UK, and therefore the Bill, as it stands, does not honour the Government’s commitment to protect existing rights.
As we have heard several times today, the process of leaving the EU is already extremely complex and unpredictable, and the removal of the charter risks creating an additional level of uncertainty and instability. The Government have not managed to persuade me that that instability and additional uncertainty do not exist. I am a member of the Brexit Committee, and I know that legal opinion is divided on this issue.
Charter rights form part of the general principles of EU law. As we are retaining all other EU law, why not the charter? It seems irrational to transpose the wide and complex body of EU law without transposing the fundamental principles underpinning.it. Doing so will create significant uncertainty about the meaning of retained EU law when, in future disputes, retained EU law is interpreted. I am not a lawyer—there are many legal experts here—but I understand at least that.
The Government have pledged that removal of the charter will not lead to a reduction in the rights we enjoy in the UK, yet a number of rights contained in the charter either do not have an equivalent protection in our existing domestic law or have significantly broader scope than rights found elsewhere, such as in the European convention on human rights. Charter rights without equivalents include specific rights relating to children; the free-standing right to non-discrimination, including on the ground of sexual orientation; the freedom to conduct business; the right to protection of personal data, about which we have heard a lot today; the right to physical and mental integrity; and the guarantee of human dignity. Those extra rights are not replicated so far in our own legislation.
The charter also gives explicit effect to rights in a way that is not matched elsewhere. As I understand it, charter rights have their origins in United Nations treaties, but the UK has not incorporated UN human rights treaties into domestic law, so those treaties do not have direct effect and do not provide equivalent protection to that currently provided by the charter. If the Bill is not amended, the charter rights will be unenforceable in UK courts. The loss of the charter means the Government risk failing to fulfil the general international responsibility to which they signed up to avoid any regression in human rights. I may be misquoting Mr Grieve here, but perhaps one day the penny will drop that we are living in a global world and we do have international responsibilities.
The removal of the charter without a like-for-like replacement would amount to a reduction in legal rights, particularly domestic remedies, and the Government have not done enough—
I thank the hon. Gentleman for making that point. Legal experts the Select Committee has listened to have made the point that there are gaps, so what is the point of not taking the charter into our retained EU law as a whole, because we are taking everything else, and making sure these gaps do not exist?
Does the hon. Lady agree that it is hard to substantiate the claim that Britain leads the world in equality rights, given that we have so often had to fall back on the charter to fill gaps in our equality laws, as, for example, in the Walker case before the Supreme Court in the summer?
The hon. and learned Lady makes a good point. I am proud of the British legacy of fundamental rights, but as is clear, and as seems to be stated in a lot of legal cases—as I say, I am not a legal expert—lawyers are using different kinds of law because different laws apply to different cases. That is why we have this charter and we would lose a fundamental protection if we did not have it.
I do not wish to criticise the UK Government, because in many ways and instances they do lead the way in signing up to the UN conventions. As Ministers made clear last week, in terms of international law the UK adopts a dual system. So it is all well and good for the UK Government to sign and ratify UN conventions and treaties, but they do not actually become part of our domestic law unless there is an implementing Act of Parliament, because of the principle of parliamentary sovereignty. So we send out a signal that we lead the way but in terms of enforceable rights the hon. Lady is quite right: rights for the children are not enforceable before our courts.
I thank the hon. Lady for making that valuable point. As someone who is not a legal expert, I believe this is about having a safeguard. We are keeping the law in the charter because it fills a gap that we would have otherwise. That is why we should retain the charter.
Let me give an example: the charter provides specific rights for children that are not replicated elsewhere in UK-wide human rights law. It requires that the child’s best interests must be a primary consideration in all actions relating to children; that children’s views may be expressed and shall be taken into consideration; and that children have a right to maintain a personal relationship with both their parents, unless this is contrary to their interests. The latter right was used in a case relating to two British children, whose father’s deportation was successfully challenged by focusing on the major negative impact on the children of loss of contact with a parent. Cases of this kind might become more common if Britain leaves the EU and EU nationals lose the automatic right to reside in the UK, with the consequent risk of family separation.
The charter also contains a prohibition on child labour which is not replicated elsewhere in UK human rights law. Another example of the charter providing greater protection is on disability rights. Disabled people would no longer be able to use the charter to support their right to independence, integration and participation in the community. This interpretive tool in the charter goes much further than the non-discrimination provisions in the Equality Act 2010. On healthcare, as we have heard, the charter was decisive in ensuring that bans on tobacco advertising were permitted. The list goes on, so why not retain the charter? Let me be a bit flippant here: I cannot help but wonder whether the Government are making this obvious omission from our statute books because some time ago the Prime Minister, when she was Home Secretary, had a ding-dong over the charter when she unsuccessfully tried to extradite Abu Qatada and this is a bit of late comeback.
To be serious again, what I worry about most in all the discussions about Brexit is that everything is being done in a big hurry because some eager Brexiteers would rather leave the EU tomorrow and not think about any consequences, even those that would mean real harm for this country. New clause 78, tabled by my right hon. Friend Tom Brake, would specifically provide an overarching domestic guarantee of non-discrimination by the state. It would be a domestic replacement for the safety net for equality rights currently provided by EU law. The new clause would serve a distinctive and different purpose from the rights protected by the Equality Act 2010, and I urge the Minister to consider it again. It would provide a guarantee that our laws must be non-discriminatory in their purpose and effect, along with a mechanism to challenge them if they were. Currently, that cannot be done under the Equality Act.
Providing greater protection of our human rights has nothing to do with losing sovereignty but everything to do with doing the right thing by our own people. I am fed up with being branded undemocratic or unpatriotic for merely pointing out that the Government will be failing their own people if the Bill passes unamended.
The new clause has been promoted by the Equality and Human Rights Commission. I take it that the commission has done careful research into how it would provide an extra guarantee that is not currently provided. The hon. and learned Gentleman should look at it carefully to understand how it is meant to work, but it is an overarching tool that, as I understand it, we currently do not have. As I said before, as a non- legal person, for me the most important thing is the safe- guarding of our equality laws and the need to match what has been done so far at European and international level.
Brexit is increasingly nothing to do with what leave politicians promised to the people. I fear it is becoming an ideologically driven process to turn this country into some sort of deregulated free-for-all, in which the progress we have made over the past four decades to protect individuals from exploitation and discrimination, in tandem with our European neighbours, is sacrificed on the altar of sovereignty. The British people did not vote to give away their fundamental rights and protections. If Parliament does not amend the Bill, let nobody claim that this is the will of the people.
I apologise for my brief absence from the Chamber during the debate—it was because of the excitement of a Delegated Legislation Committee.
I wish to say a few words about why I feel unable to support the proposals to bring the charter of fundamental rights into UK law, but before I do so I acknowledge the huge importance we should all place on the scrutiny of this historic piece of legislation. The Bill is of course a critical part of the implementation of the huge decision made by the people of the United Kingdom in the referendum last year, and it obviously has a crucial role to play if we are to avoid a regulatory gap in relation to aspects of our law that are currently covered by EU legislation. Although I do not feel able to agree with the new clauses and amendments we are debating, I fully respect the intentions of those who have tabled them.
At a time of great change for this country, it is important that we find ways to work across party divides to come together to make a success of the process of implementing the referendum result and leaving the European Union. My goal for a successful outcome is a new partnership with our European neighbours, with which I hope those on both the leave and remain sides of the debate can be comfortable. It will, of course, be important for Ministers to listen to a spectrum of views before the final terms of our departure from the EU are settled, and I know they are strongly committed to doing that.
Turning to the amendments on the charter, as others have pointed out, we already have a very extensive legal framework for providing strong protection for individual rights and freedoms in this nation. As well as the legal developments of the 20th century with the adoption of the European convention on human rights followed by a series of world-leading equalities statutes, we have a tradition of protecting the individual against arbitrary power by the state dating back to the middle ages. That includes common law remedies such as the writ of habeas corpus to protect against unjustified detention, and the Forcible Entry Act 1381 which established that every citizen of this nation can close their door to the authorities unless those authorities have a warrant.
This long-established commitment to the protection of rights undermines the case for the charter. I welcome the Minister’s assurance that he will work to ensure that if there are any gaps in the coverage of our human rights legislation, the Government will give the matter due consideration.
Secondly, the retention of the charter would lead to real problems of uncertainty and instability in our legal system, as a number of Members, including my hon. Friends the Members for Stone (Sir William Cash) and for Huntingdon (Mr Djanogly), have mentioned. This includes the potential confusion between the charter and the European convention on human rights. The effect of the charter, whether applied to UK laws before or after exit day, cannot easily be predicted. We had a bit of a debate on the continuing role of the ECJ, but certainly retention of the charter would give rise to the risk of continued influence over our courts by the rapidly evolving and expansionist case law of the ECJ on the charter.
As Martin Howe, QC, said recently, there is a risk that we would open the door to
“judicial adventurism in our own courts”.
Even assuming that only pre-existing case law has relevance here, we have seen that the court has decided that the charter should be given a broad interpretation. Some of our laws and statutes could have a precarious status in the future if these amendments are passed.
My third concern is that the amendments would give the courts power to strike down a statute on the basis of incompatibility with the charter. Although this strike-down power has been an aspect of EU membership, it is not, as hon. Members have pointed out, given to the domestic courts in relation to compatibility with the Human Rights Act. Granting our domestic courts this power in relation to the charter would be a significant constitutional step, as has been acknowledged by my right hon. and learned Friend Mr Grieve, requiring a more extensive national debate than we have currently had.
There are pros and cons in determining whether the final say on our laws should rest with Parliament or with judges, but I hope that many will agree that this is a significant constitutional question. Before we could embark on that course of action, we would need to establish a stronger national consensus than we currently have for the charter.
I am grateful to my right hon. Friend for giving way. We are told by the Treasury Front Bench that these are existing rights which they apply now, and that they are rooted in legislation from before the European Court. Given that those are rights that are applied now, why does she not wish to protect them and ensure that they continue?
That was certainly the stated intention when the charter was originally drafted, but the judicial activism of the ECJ has seen the scope of the charter expanded. Essentially, what we are talking about is the division of power between our courts and our legislature. I do not believe that we have the national consensus to deliver such a significant change to our constitution as to enable our domestic courts to strike down our laws.
My right hon. Friend talks about the expansion of the charter through the role of the ECJ. Can she give us an example where it has actually been the charter that has caused that expansion? In reality it is the European convention on human rights rather than the charter of fundamental rights that has tended to lead to an expansion.
Of course, the key expansion as far as the United Kingdom is concerned was the confirmation by the European Court of Justice in the Åklagaren v. Hans Åkerberg Fransson case that the charter did actually apply to the United Kingdom and that the opt-out that was supposedly obtained by Tony Blair was not valid.
That brings me to my final reason for scepticism about the charter and the amendments. I was an MEP during the period when the charter was drafted in the EU constitutional convention with a view to inserting it in the abortive EU constitution.
As a former and, I have to say, very distinguished Secretary of State for Northern Ireland, who did a really good job in that office—I mean that most sincerely, although I rarely have the opportunity to say it—the right hon. Lady will know that the UK withdrawing from the charter of fundamental rights will have an impact on the Good Friday agreement and on the perception that half of the community in Northern Ireland will have of respect for human rights, rightly or wrongly. Will the right hon. Lady therefore encourage the Government to draft a Bill of Rights for Northern Ireland, which is, of course, also a key part of the Good Friday agreement?
I can assure the hon. Lady that this Government and, I am sure, all successive Governments will remain strongly committed to the Good Friday agreement and to the protection of individual rights. As she will appreciate, of course, the agreement expressly referred to in the Good Friday agreement in relation to human rights is the European convention on human rights. However, I fully understand her point of view on this matter, and it will always be important for us as a Chamber to respect individual rights. The tenet of my speech is that we do not need the charter to enable us to do that. We have extensive legal frameworks available to us as a Parliament, and through our judiciary and legal system, and that will ensure that we properly protect our citizens, whether in Northern Ireland or in the rest of the United Kingdom.
Let me turn to my final reason for concern. I well remember the clarity of former Prime Minister Tony Blair about the fact that the charter would not be given legal force. As far back as 2000, the Prime Minister and the Europe Minister of the day stated that very clearly for the House. In 2003, the Labour Government’s lead negotiator on the convention, Peter Hain, said there was no possibility of the Government agreeing to incorporate the charter. In 2007, Tony Blair told Parliament that we had an opt-out from the charter, and this approach was supported by a number of pro-EU groups, such as the CBI. Even my right hon. and learned Friend Mr Clarke expressed scepticism about the charter and described it as “a needless diversion”.
While the ECJ may since have ruled that the opt-out secured by Mr Blair was nothing of the sort, we now have the opportunity to see those promises fulfilled. We have a long history of protecting the rights of the individual against the arbitrary exercise of power by the state. We have ample means to do that in the future, with hundreds of years of case law and statute establishing strong principles of accountability in our unwritten constitution. We can legislate in the future if we ever find any gaps in our current framework. We do not need the charter to protect our citizens, and I appeal to Members not to accept the amendments being debated today.
It is a pleasure to see you in the Chair, Mr Hanson. I rise to support amendments 101 and 105, tabled in my name. They relate to the debate we had about environmental principles on day two of the Bill’s Committee stage, and particularly about new clauses 60 and 67, and new clause 28 which was also tabled in my name.
As it stands, UK laws that arise from EU laws such as regulations and directives and that do not comply with the general principles of EU law can be challenged and disapplied. Administrative actions taken under EU law must also comply with the general principles. I say that by way of clarification, because I think a lot of people are trying to follow the debates in this Chamber during the Committee stage, and they are perhaps wondering what on earth we are talking about, so I am trying to make things as simple and as clear as possible for the public out there— and perhaps for some of us in the Chamber as well.
That is the situation as at the moment while we are members of the EU. Post-Brexit, though, schedule 1, as I interpret it, places unnecessary and unjustified restrictions on how these principles will be applied. That is what my amendments seek to rectify. Paragraph (2) states that retained principles will be only those that have been recognised or litigated by the Court of Justice of the EU in a case decided before exit day. Only those principles will be retained in domestic law; others will not, even if recognised in treaties. In the debate on day two, the Minister said in response to new clause 28 that this was because we needed a cut-off point and could not have ongoing interpretation of directives that would affect the situation in the UK. However, I would argue that there is still a real lack of clarity, and a danger that if we allow only principles that have been litigated on to apply post-exit day, the non-controversial ones that people do not have a problem with will end up falling away, while only the controversial ones are retained. It is also unclear whether these general principles include environmental principles, as the term “general principles” has not been defined by the ECJ or by the treaties. If environmental principles are not explicitly recognised as general principles, they could be lost entirely. I hope that the Minister can give us a bit of clarity on that.
Paragraph (3) of schedule 1 explicitly limits the legal remedies available when general principles are contravened. Under this paragraph, UK courts will no longer have the power to disapply domestic legislation on the grounds that it conflicts with these general principles. They could only be used like the pre-exit case law of the CJEU to inform the interpretation by UK courts of retained EU law. Paragraph (3)(2) therefore appears to narrow the scope for judicial review that currently exists. In the previous debate, some of my colleagues argued very eloquently as to the importance of judicial review in environmental cases but also highlighted the fact that it is often inadequate, and increasingly so, given the cap that is imposed. Paragraph (3)(2) would further narrow the scope of judicial review and make it harder for the public to hold the Government to account. As discussed last week, it is vital that the courts are able to enforce the environmental principles.
Amendments 101 and 105 speak to those points. Amendment 101 clarifies that all existing principles of EU law will be retained in domestic law, whether they originate in the case law of the European Court, EU treaties, direct EU legislation or EU directives. It also makes it clear that the key environmental law principles in article 191 of the Lisbon treaty are retained. Amendment 101 therefore expands the meaning of general principles to specifically include the environmental principles. Following on from that, amendment 105 seeks to retain the right of action in domestic law for the public to hold the Government to account for their breaches of the principles.
I know that the Government are proposing an environmental principles policy. I have lots of questions about how that would operate—whether it would be on a statutory footing and so on—but at this stage I ask the Minister to confirm whether they will publish at least an outline version of what that principles policy would look like while there is still time to consider it and its implications for this Bill. So far in Committee, Ministers have been very fond of asking us to take their word for it, but I am simply not prepared to do that: I want to see what these policies would look like.
Will the Minister also explain the Government’s objection to the idea of having internationally recognised principles of environmental law enshrined in UK statute? The Government could include the basic principles in UK law by accepting my amendments. Not least, that will provide us with much needed reassurance that the Environment Secretary will win out against the International Trade Secretary in ensuring that future trade deals with countries such as the US will not lead to imports of chlorine-washed chicken and hormone-pumped beef on our shelves. The Environment Secretary has encouragingly said that the UK should say no to chlorine-washed chicken from the US and that we are
“not going to dilute our high food-safety standards or our high environmental standards in pursuit of any trade deal”.
But as was pointed out during last week’s debate, the environmental principles set out in the EU treaties have been instrumental in decisions such as the EU ban on imports of hormone-fed beef, the moratorium on neonicotinoid pesticides, and the control of the release of genetically modified organisms in the EU.
The debate on day two saw a degree of political consensus emerging around the value of environmental principles such as the precautionary principle, as well as in other areas, particularly the Environment Secretary’s mooted plan for a new independent body to hold the Government to account. I hope that when we consider the governance gap on a future day, we will hear more about his plans for that body. I think we also got confirmation from the Environment Secretary, although it was only a nod from a sedentary position, that he intended to follow the Environmental Audit Committee’s recommendation and introduce an environmental protection Act. I hope that we will hear more about that and the timetable for it. I understand that the much delayed 25-year environment plan may be with us in the first quarter of next year, a fisheries Bill is coming from the Department for Environment, Food and Rural Affairs and the agriculture Bill is due, I think, after the summer recess. If the Government are going to introduce an environmental protection Act before exit day, they will have their work cut out for them. I would be grateful to hear a bit more about that.
As I have said, the Bill, as it stands, does not protect those environmental principles, and environmental protection after exit day will not be as strong and rigorous as it was before exit day. I seek the Minister’s reassurance that he intends to make sure that that does not happen.
Broadly speaking, there have been two means of protecting human rights in international law. The first, which is generally followed by civil and continental law systems, has been to adopt charters of general rights with very broad statements of those rights and then to turn over to the courts the interpretation, in specific circumstances, of how those rights should be applied. The second, which is generally followed by common-law traditions, has been to proceed not by general statements of rights, but by specific statutory remedies in defined circumstances and by case law that defines the facts and allows the remedy to be extended by analogy with the facts of the particular case.
With due respect to Opposition Members, it seems to me as though some of them have made a mistake in equating the need for the incorporation of the charter with the protection of fundamental rights in this country. Article 7 of the universal declaration of human rights provided in 1948 that all subscribing nations to the United Nations should respect the principle of equality. But it has never been suggested that the United Kingdom, because it did not incorporate that principle into a general statement of an equality right, was not compliant with its obligation in international law, under the declaration and subsequently the covenant, to respect equality.
That is because there are two ways in which one can protect human rights. One can either adopt a general statement of rights and leave the protection of it to the courts, or one can adopt specific remedies in given circumstances that cumulatively and substantively protect those rights. Nobody has suggested that because the Soviet Union incorporated a right to equality into its constitution, equality rights were better protected there than they were in this country, which did not. Therefore, the absence of a general statement of rights, such as that in the charter—I do not say that there is not a function for such statements, but let us begin with first principles—is not to be equated with the protection of human rights. We have to look at the substantive effect of the cumulative common law and statutory protections in our law.
That is why my right hon. Friend Mr Harper suggested that the Government’s approach should not be to incorporate this charter of wide, broad and, quite frankly, vague general statements of rights and allow courts to take those statements, which are often rich with value judgments, and apply them to the facts. That is why the approach of my right hon. and learned Friends on the Front Bench is right and, I suggest, consistent with the common-law tradition of this country.
I am wondering which country the hon. and learned Gentleman is talking about, because the common-law tradition melds with the civilian tradition in Scotland. I take nothing away from his erudite explanation of the background to all this, but the point that hon. Members seek to make is that, as is the case with the Human Rights Act, having the charter of fundamental rights as part of our law gives ordinary citizens and businesses the opportunity to go to court to enforce those rights, which this Bill will take away from them.
No such charter existed with binding legal force before 2009, even in the European Union, but let us look at the circumstances. I contend that there are two ways of proceeding, of which the first is to have a broad and general statement of human rights—indeed, extended human rights under the charter—and to allow the courts simply to interpret them in given circumstances.
Some Government Members and—I think—some Opposition Members believe that the proper place to resolve moral dilemmas is not necessarily in a court. As someone once said, why should a majority of five or nine judges take precedence over a majority of the 650 Members of this House on questions of moral dilemma? Many of these—
The point is that these broad and general rights are ripe with value judgments. Quite often, they are not appropriately dealt with by six or seven elderly white judges in a Supreme Court; they are better resolved on the Floor of this House and by a democratic vote in this Parliament.
If my hon. Friend will forgive me for a moment, I need to develop an argument, because I want to move on.
Let us accept for the moment that there is a second and perfectly legitimate way, which international law accepts. International law does not require subscribing nations of the United Nations to adopt a Bill of Rights, and neither does the European Court of Human Rights—it never did require us to do so. It looked at the substantive and practical effect and how those rights were substantively protected in the jurisdiction. If we accept that for a moment, why should we not proceed by means of the Government’s proposed policy of examining specific statutory remedies and specific rules of common law, and considering whether the right is satisfactorily protected?
Some of us believe that the courts are not always the right place in which to deal with these matters. For example, article 20 of the charter of fundamental rights simply contains a right to equality before the law. That right has been enshrined in the common law in this country for centuries. Why should we have it in the charter of fundamental rights? Some say that there will be a problem between the two charters—
I will give way to the hon. Lady, but not now.
Some say that there will be a collision. I am not sure that I buy the argument that there will be too much of a conflict or collision between the charter and convention. Quite frankly, my experience in the courts is that when both are relied on, the judge usually ignores the charter. As I said to Joanna Cherry, the judge asks, “What does it add?” One may hum and ha, and try to come up with something, and the judge thereafter says, “Well, let’s concentrate on the Human Rights Act and the convention, shall we?”
The truth of the matter is that I do not deny that a modest—I repeat, a modest—extension in the courts has been effected in very recent years by the charter. The case of Benkharbouche is an example of an applicant being able to set aside part of the immunity from suit that the State Immunity Act 1978 conferred on a foreign embassy. Article 6 of the convention did not apply to the employment context, but article 47 of the charter, which guaranteed an effective remedy and a fair hearing in circumstances covered by the scope of European Union law, allowed that lady to argue that part of the statute should be set aside, and it was set aside.
Similarly, in the Vidal-Hall data protection case, the restriction under section 13 of the Data Protection Act 1998, which this House had imposed—it said that if people wanted to bring an action for damages under the Act, they had to show they had actually suffered damage—was set aside by the court on the basis that the data protection directive contemplated cases in which people suffered not merely damage, but distress. However, whether somebody should be able to sue the state or anybody else for damages because they have suffered distress or has to prove that they have suffered pecuniary distress is a matter for this House.
That is what I mean when I say that these matters are resolvable in numerous ways. Many Members on both sides of the House would disagree on the question of whether it was a legitimate public policy judgment that we should restrict an action for the breach of the Data Protection Acts to cases where actual damage was suffered or whether distress was enough. Why should it be resolved by a court? Why should it not be resolved by the House? That is part of the reason why Members on both sides of the House voted to leave the European Union in the first place. We believed that those kinds of decisions needed to be taken here, not by courts and not by the imposition of a law in which we did not have a majority say in this kind of question.
I want to develop what I hope is a coherent argument. I was addressing the question of whether or not there was a conflict between the human rights order—a disharmony imposed by the convention—and that which might be imposed by the incorporation of the charter. There could be real problems ahead. There will be cases in the broad and expansive definitions of European Union law, under which the charter applies when it falls within the scope of EU law, when a moral dilemma confronts a court that is asked to disapply an Act of Parliament. The supremacy principle is retained, as my right hon. and learned Friend Mr Grieve observed, by the Act. In cases in which it is covered by the charter, and in which such a dilemma has arisen, the Act is set aside because of Benkharbouche and Vidal-Hall. If the charter is incorporated, its vague and general statement of rights will have binding force, so the Act will be set aside.
If I bring a case under the convention and I say that the Act should be set aside because I have suffered inhuman and degrading punishment, or some of the worst violations of human rights that could be conceived by a state, I cannot have the Act of Parliament set aside, which introduces an element of absurdity in our law. Apparently one can torture someone and not have the Act of Parliament set aside, but I cannot have my workplace rights infringed: in that case, I can have the whole caboose set aside—a whole Act of Parliament and statutory apparatus. It makes no sense, and it will bring our law into disrepute if we tolerate for long a situation in which a court faces a moral dilemma when a case is brought under a general statement of human rights. In some cases that are litigated, the court can set aside Acts of Parliament, but in other cases, it cannot do so, even when it involves the most serious violations of human rights imaginable.
Everyone accepts that the Bill legislates for an unsatisfactory situation—we can all agree on that. I tell my friends on the Conservative Benches with whom I have far more in common than that which divides us, even though we may have been on different sides of the debate on the question of belonging to the European Union, we can all agree on some fundamental things. It cannot be right to go on for long with a body of law in our overall legal order that permits and allows higher, special and better rights in certain circumstances. Incorporating the charter will exacerbate that problem. The protection of the rights that Opposition Members have rightly identified as worthy of protection can be accomplished by a different means. Stephen Timms, who is not in his place, spoke so well on data protection. It is absolutely right that we need to make certain that our data protection laws are no less important that those we find on the continent, but we do not need to do that by incorporating a general statement of a right and leaving it to the courts to enforce.
In any event, I disagree with the right hon. Gentleman about the effect of article 8 of the charter, which covers data protection, and even the Council of Europe’s convention No. 108, to which we are signatories. The directive itself refers to article 8 of the charter as an underpinning source of protection of privacy rights in the data field. If we approach it in the manner the Government suggest—let me say to Opposition Members that I concede completely that this requires collaboration and co-operation in an honest and transparent spirit by those on the Conservative Front Bench—then let us work together to ensure that these rights are protected, but we do not need a broad, general and vague statement of rights incorporated into our law through the charter that will produce anomalies in our law in a fashion that will not do it credit.
I will conclude by saying, if I may, that we face a political choice. I urge Conservative Members to reflect on the fact that, provided these rights are protected, it does not matter the means by which that is done. General states of human rights are not necessarily consistent with the common-law tradition. I remind the Opposition Front Benchers that when the Human Rights Act was introduced by their Government—a signal achievement of their Government—they deliberately left out article 13 of the convention, which required an effective remedy. They did that for a very good reason: the careful constitutional balance of the Human Rights Act meant that they wanted to avoid courts deciding, under the influence of the European Court of Human Rights, that they would have to lean towards striking down Acts of Parliament. It was a possibility at that time. Indeed, in New Zealand, under its Bill of Rights, the courts were moving towards believing that they were obliged to strike down Acts of their Parliament. Leaving out article 13 meant that there was no risk of that, but article 47 puts it back. It allows the disapplication of statutes of this House. There was a good reason why the Labour Government of the day thought that that was imprudent and there is a similarly good reason today.
I thank my hon. and learned Friend for giving way. He makes a very passionate and highly informed speech, which explains so much about the basis of law and the merits of the common-law system. Surely the point he did not address, however, is this: the Bill enshrines EU law into domestic British law. Therefore it does not make sense not to incorporate the charter. That is the contradiction that concerns many.
It does make sense, because all that does is restore us to a position pre-2009 in the European Union. The general principles will still apply. There is no inconsistency by allowing the general principles—subject to amendments, which I am not speaking on; I have some sympathy with the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield —but I am convinced that incorporating the charter would be wrong and unwise. As a matter of policy, I urge my right hon. and hon. Friends and Opposition Members not to vote for it.
I rise to participate in this debate as something of a rarity: a non-lawyer. I will try to keep my comments within the allotted time of between 10 and 12 minutes.
I wish to follow the compelling and intelligent case made by Stephen Timms, and I am delighted to speak in support of his amendment 151, which highlights, in particular, the consequences facing millions of British citizens and thousands of companies if the UK’s data protection legislation cannot be reconciled with EU law post-Brexit. If clause 5 is passed unamended, and should the UK crash out of the EU on
The consequences for the businesses and individuals who rely every day on that free flow of data across international boundaries—a free flow that needs to occur safely and without delay, cost or detriment—are unthinkable. As the Software Alliance said in its recent report,
“The benefits of cross-border data transfers are vital, not only for the technology sector but also for financial services, manufacturing, retail, healthcare, energy and most other sectors”.
The Data Protection Bill impact assessment, published last month, recognised the huge economic importance of the UK being able to guarantee effective unrestricted data flow and predicted that being at the forefront of data innovation could benefit the UK economy by up to £240 billion by 2020. Despite the warnings of businesses and their own impact assessment, however, the Government, in implementing clauses 5 and 6, seem determined to make the UK some kind of digital island, cut off from the rest of the global digital economy.
One would have thought, at a time of so many data breaches and cyber-attacks, that ongoing data co-operation with our European partners and others was not just desirable but essential post-Brexit. If creating a digital island is not the Government’s aim, I strongly suggest they make securing a workable compliant data protection deal with the EU one of their main priorities. It is not enough for them simply to assume that we will attain the status of adequacy by default—because we will have implemented general data protection regulations—or that, come what may, the minute we leave the EU our data protection laws will automatically be harmonised with the EU’s. That is simply not the case.
As we heard from Mr Leslie, the right hon. Member for East Ham and others, the European Court of Justice has already ruled, in both the Watson and Tele2 cases, that the implementing of GDPRs simply is not enough automatically to secure an adequacy by default agreement from the EU. The only avenue I can see for the Government, therefore, if they wish to achieve adequacy by default status, which they claim to desire, is to secure a deal with the EU that complies with European law before we leave. To do that, we would require a transitional period, during which we could negotiate a deal while remaining inside the single market and customs union and under the jurisdiction of the ECJ. That is one way for the Government to find time to negotiate the adequacy by default status. Of course, the other, and much more straightforward, option would be for the Government to commit to the UK remaining inside the single market and customs union and under the jurisdiction of the ECJ, given that no one in the UK ever voted to leave the single market or the customs union.
To be clear, the consequences of the UK crashing out of the EU without a deal would be catastrophic, particularly for businesses in the telecommunications and financial sectors, which are heavily reliant—almost entirely dependent—on the unrestricted free flow of data. The right hon. Member for East Ham detailed the importance of data to the UK economy. In the decade to 2015, the amount of cross-border data flow increased twenty-eightfold in the UK, and currently digital and data-intensive sectors of the economy account for 16% of UK output and 24% of our total exports. But as the clock ticks down to Brexit, I know that businesses that rely on the free flow of data are becoming increasingly concerned. They need to know now what is happening: they cannot plan for the future simply on the basis of a vague Government promise that somehow it will be all right on the night. I fear that, if they do not have guarantees about exactly what is happening well ahead of Brexit, they will vote with their feet and leave, like the European Medicines Agency, which announced last night that it was moving 900 high-tech, high-value jobs from London to Amsterdam.
Businesses cannot afford the risk of finding themselves outside the EU data protection area, and they cannot and will not wait until the last minute to find out what is happening. That is not commercially viable. Contracts would have to be rewritten and bills renegotiated, and things like that do not happen overnight. I fear that, if there is no agreement on an issue as fundamental as data protection, many large, high-net-worth companies which provide high-value jobs will begin to seek the stability that they need outside the United Kingdom.
As I said earlier, I seriously question whether the maintaining of a frictionless cross-border data flow is attracting enough of the Government’s attention during their Brexit negotiations. My alarm bells began ringing a number of weeks ago, when the Minister for Digital told the House that the Government were seeking “something akin” to an adequacy agreement. I had absolutely no idea what he meant then, and I am no closer to understanding now. “Something akin” to an adequacy agreement simply does not exist. An adequacy agreement is a formal legal position. It cannot be bent, moulded, or used as a quick fix to get a country, or a Minister, out of a sticky situation. The leading data protection lawyer Rosemary Jay said of adequacy agreements that the EU
“has to go through a legislative process. It is not simply within its gift to do it in some informal way”.
EU law is very clear: an adequacy decision can only be given to a “third country”— a country that is outside the EU and the European economic area—to allow it to operate securely and freely within the framework of the General Data Protection Regulation, and an adequacy decision can only be given to a third country that meets the European Union’s high standard of data protection and whose domestic legislation is deemed compatible with the European Union’s charter of fundamental rights. The most obvious difficulty is that an adequacy decision is designed for third countries. The UK is not—yet—a third country, and it will not be a third country until the very end of the Brexit process.
There is a whole lot more to be considered. I cannot see how, without negotiating and securing a deal before leaving the EU, the UK can qualify for any sort of adequacy agreement, whether by default or otherwise. Even if the Prime Minister does secure a transitional period and is given time to sort out the UK’s “adequacy” problems, there is still no guarantee that adequacy by default will be achieved, because before granting an adequacy decision to a third country, the European Commission is obliged to consider a variety of issues such as the rule of law, respect for human rights and legislation on national security, public security and criminal law. That means that any deal that we reach with the EU will have to require at least a complete reworking—and, at best, a complete ditching—of the UK’s Investigatory Powers Act. In its present form, the Act leaves UK law incompatible with the charter of fundamental rights, which, as we have often heard, includes a chapter on the fundamental right to data protection.
On that basis alone, I am almost certain that the Act, which has already been accused of violating EU fundamental rights, will seriously call into question the UK’s ability to receive a positive adequacy decision. Eduardo Ustaran, a respected and internationally recognised expert on data protection, has said:
“What the UK needs to do is convince the Commission—and perhaps one day the European Court of Justice—that the Investigatory Powers Act is compatible with fundamental rights. That’s a tall order”.
The Government are understandably desperate to secure an adequacy decision by default or otherwise, but the harsh reality is that, at the very least, a lengthy and challenging legal process will almost certainly have to be undertaken before that can happen. That is why it is essential that the Government must first secure the transitional period to keep the UK within the single market, the customs union and the jurisdiction of the European Court of Justice. We have to redraft the Investigatory Powers Act to make it comply with the charter of fundamental rights—if that is even possible, given the current form of the Act. Should that not happen, we will crash out of the European Union without a data protection deal, with all the devastating consequences that that would have for individuals and businesses.
Despite the Government’s oft-stated desire to secure an adequacy agreement that will retain the UK’s status as a safe recipient of personal data from the EU and further afield, I fear that their lack of action in preparing the ground properly to secure such an adequacy agreement by default or otherwise following the negotiations is causing great concern to businesses that rely heavily on the free flow of data. I urge the Government to accept amendment 151.
I had occasion to consider deeply the matter of rights and human rights when I drafted, tabled and had debated in this place a British Bill of Rights—the Human Rights Act 1998 (Repeal and Substitution) Bill. People said to me that that could not be done, that it could not be drafted and that it was an impossible project. However, with the help and counsel of many hon. and learned Friends—not least my hon. and learned Friend Mr Cox, who has just spoken with power, force and vigour—I was able to construct and present a Bill of Rights to this House. That is relevant to this debate because there were three key questions involved. The first question was: what are the rights? The second was: how do we interpret them? The third was: which court should decide on those rights?
Let us take the first question. What are the rights? Some rights are so basic and self-evidently true that they are not even rights at all. They are values. They go to the heart of our constitution, of our foundations, of what we believe in as a country, of what we are about and of our way of life. They involve basic stuff such as the rule of law, natural justice, the right to a fair hearing and the presumption of innocence. Those are the fundamental values of what we are about as a nation and of what we hold to be self-evident and true. When they are trampled upon, there is uproar in this place and across the country because we know in our hearts that those are the values that we hold dear. They are not rights; they are values.
There are also rights, in the Human Rights Act 1998, that we hold to be self-evident and true. They are called second amendment rights in America, and they include the right to a free press, the right to free speech, the right to determine one’s religion and the right of association. Those are important rights that go to the heart of what we are about and that we call values. Then there are the many rights set out in the European convention on human rights that have been built mainly in our own constitution and our own history. They did not just begin in 1998. They are rights that we have taken to be self-evident and true for many years, and they have found their way into the Human Rights Act, and the human rights code—a document to which it is hard to object.
Then we come to the issue of interpretation, and that is where the problems begin. The European Court of Human Rights adopts an interpretation mechanism that I call objective. It asks: do we have the right to family life, yes or no? If we have that right, we cannot be extradited in certain cases. In our own system, we tend to take what I call a more subjective view. We look at all the facts and circumstances of a case. In interpreting that right, we ask whether someone should be able to stand on that right to family life, given their conduct if, for example, they had committed a crime or run someone over. Having examined all the facts and circumstances of the case, we would say that they should not be able to stand on that right because their conduct means that they should not be allowed, ethically and in equity, to do so. That is where the British people were in so many extradition cases. They thought, “These are European rights and they are all wrong.” They are not necessarily wrong, but their interpretation was not right and did not sit well with our values, our way of life and our understanding of how principles of law should be interpreted.
The third question is: what is the proper court? I made sure that my British Bill of Rights included a clause on interpretation. It stated: first, that all facts and circumstances of a case should be considered, giving judges a wide discretion to make a full decision; and secondly, that the court should be the Supreme Court. For me, it was about making the Supreme Court supreme. I did not see why our rights as a nation should be subject to the European Court of Human Rights, or indeed to the European Court of Justice, when our own Supreme Court can determine those things very effectively. I agree with my hon. and learned Friend the Member for Torridge and West Devon that it should be this House that constructs rights, that their interpretation should be in line with our own canons of interpretation as a nation, and that the Supreme Court should be supreme.
However, I would not reject the charter of fundamental rights out of hand. Let me explain why. There are rights that make no sense here, such as the right to petition the European Parliament. If we are leaving the European Union, why would we want to petition the European Parliament? On the right to free movement, to seek and have employment anywhere across the continent, that will be a matter for us to determine as a nation state when we leave the European Union. It makes no sense to include those rights in the charter—a point I made to my right hon. and learned Friend Mr Grieve, who agreed with me that we would need to adapt it.
The charter contains rights that draw on the European Court of Human Rights, so there is unnecessary duplication. Then there is an intermediate set of rights, which I think this House should look at. If we are to take back control, we should ask ourselves, “Is it right that some of the rights in the charter should be brought into our own system of law?” That might not be for this Bill, but it is something we should definitely consider.
As we are in effect transposing the whole of EU law, with all the regulations that people have complained about for years, for example on bendy bananas, and the regulation of electrical items and consumer protections, does it not make sense to look at this third category of rights?
I agree with my hon. Friend. I think that it does make sense to look at this category of rights, whether in this Bill or more widely; it is something the House should consider.
Where is the balance to be struck on article 8, which relates to the protection of personal data? My view, for what it is worth, is that I should own my own data and decide what happens to it. It is my own data about me, so I should not have the Government or big businesses saying, “No, it belongs to us.” That is a debate that we should have as a country. This Bill is probably not the right mechanism for that debate, but we need to consider where the balance should lie.
Article 41 sets out the right to good administration. The Minister will say, “Well, of course we administer correctly; we are honourable men”—so are they all. But it is important that, as a matter of principle, every person
“has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies” and that the right includes
“the right of every person to be heard, before any individual measure which would affect him or her adversely is taken”.
It seems to me that these rights are self-evident and true, and that we ought to ensure that they are written into our codes, from the point of view of Executive action, if they are not already. They include
“the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality” and
“the obligation of the administration to give reasons for its decisions.”
Those things, it seems to me, are self-evident and basic about what we are and should be about. These are rights that are not written into our system fully and properly, but I think that there is a strong case that they should be. I have of late had reason to ponder such matters in more depth, and the House should consider them to ensure that we execute such things properly in our system, our way of life and the values that we hold dear. The House should take back control to ensure that the rules of law and of executive action apply to each and every person in this nation and that we strike the right balance as we take on the great responsibility of restoring sovereignty to our sovereign Parliament.