Charter of Fundamental Rights – Government Report

Part of European Union (Withdrawal) Bill – in the House of Commons at 4:15 pm on 21st November 2017.

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Photo of Mark Harper Mark Harper Conservative, Forest of Dean 4:15 pm, 21st November 2017

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 5 December.

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 5 December.

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.