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?