Charter of Fundamental Rights – Government Report

Part of European Union (Withdrawal) Bill – in the House of Commons at 3:45 pm on 21st November 2017.

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Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 3:45 pm, 21st November 2017

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.