Charter of Fundamental Rights – Government Report

Part of European Union (Withdrawal) Bill – in the House of Commons at 5:15 pm on 21st November 2017.

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Photo of Theresa Villiers Theresa Villiers Conservative, Chipping Barnet 5:15 pm, 21st November 2017

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.