Charter of Fundamental Rights – Government Report

Part of European Union (Withdrawal) Bill – in the House of Commons at 5:00 pm on 21st November 2017.

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Photo of Wera Hobhouse Wera Hobhouse Liberal Democrat Spokesperson (Housing, Communities and Local Government) 5:00 pm, 21st November 2017

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 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—