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European Union (Withdrawal) Bill - Report (2nd Day)

Part of the debate – in the House of Lords at 3:30 pm on 23rd April 2018.

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Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct 3:30 pm, 23rd April 2018

My Lords, I am a remainer, but I am one despite—not because of—the charter. To leave the EU but nevertheless retain the charter as part of our domestic law would be the worst of all possible worlds, the very opposite of Panglossian.

Before explaining why I oppose Amendment 15 so strongly, let me acknowledge that getting rid of the charter represents an exception to the broad principle that the Government have stated as the central objective of this Bill: ensuring that our laws will be the same on the day after Brexit as on the day before. I accept that, in certain limited respects, the charter confers rights not available under either the European convention—to which we remain and intend to remain party—or our own, ever-dynamic, common law on human rights. Perhaps the best—certainly the most often cited—example of this is the Watson case, to which the Secretary of State for Exiting the European Union, David Davis, lent his name at one point. The case held that one part of the Data Retention and Investigatory Powers Act 2014 breached a particular charter privacy provision, which was found to go further than Article 8 of the convention. That has now been corrected in the Data Protection Bill, which is currently before the other place and will shortly come back to us on ping-pong. It is to that Bill, not the charter, that we will henceforth look in terms of data rights protection. Watson points up another aspect of the charter: although it applies only to the implementation of EU law—a real problem that I will have to come back to—where it applies it goes wider than the convention because it requires the courts here to strike down and disapply our primary legislation. I regard that as a minus, not a plus; it is a flaw, rather than a virtue, in the charter and it is of course inconsistent with the Human Rights Act approach.

Besides being a remainer, I am also a strong believer in parliamentary sovereignty and the supremacy of Parliament. Twenty years ago, when the Human Rights Act was enacted, the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg—who I am happy to see in his place today—incorporated, very wisely and skilfully, the rights accorded by the convention into our law on the explicit basis that if our legislation is shown to be inconsistent with a convention right, the courts can and will declare so. They can make a declaration of incompatibility, leaving it to Parliament to adjust the position as it thinks right and proper. However, our courts cannot strike down primary legislation. That constitutional arrangement was carefully decided on; indeed, it has helped to keep our judges out of the firing line and out of conflict with Parliament. It is unlike the position in the United States where, as noble Lords know, Supreme Court Justices are highly politicised figures. Here, Parliament remains sovereign—but not in those rare cases where the charter applies.

The other case, besides Watson, that best illustrates this point is the Benkharbouche case, which has been mentioned once or twice in our debates and was decided by the Supreme Court here just 18 months ago. I shall briefly summarise. Two north African nationals, one of whom has given his name, Benkharbouche, to the case, following their dismissal from employment by two north African embassies here in London, brought claims against those states in the employment tribunal. Some of those claims were based on our domestic law—unfair dismissal, non-payment of wages, refusal of holiday pay—but others, particularly under the working time directive, were based on EU law.

On the face of it, all claims, domestic and EU, were barred by the State Immunity Act 1978—primary legislation—which denied claimants the right to sue embassies in this country. Barring access to a court is, unsurprisingly, a breach of the right to justice and therefore a breach of the European Convention on Human Rights at Article 6 and of the charter at article 47. The result of the case, which I suggest was deeply unsatisfactory, was that the EU claims succeeded—the State Immunity Act was disapplied in their case—but the major domestic law claims of unfair dismissal and so forth failed because the court, under the Human Rights Act, declared simply that the State Immunity Act was incompatible with the convention.

This curious and regrettable anomaly in our law and its effect on the position of the judges has attracted very little attention because until recently the charter itself has been little noticed in litigation in this country. When, in a brief intervention in Committee on 26 February at col. 544, I put this problem to the noble and learned Lord, Lord Goldsmith, he suggested that the charter could be appropriately amended after this Act by delegated legislation. Opinions vary on whether that is possible but, either way, does it really make sense, given that we are now leaving the EU—regrettably, as I have indicated I feel—to carry over into our own law an instrument designed specifically for use only in the EU context, which, on occasions, requires our judges to disapply our legislation?

Thus far, I have focused on just the constitutional incongruity of the charter given the Human Rights Act, but there are other very powerful objections to our domesticating the charter. I will briefly touch on two real objections. I hope others hereafter will expand on these. One is the striking vagueness of the charter’s many articles. Some of course provide for real rights and those almost entirely and substantially overlap and mirror the convention rights that we have anyway, but much of the charter is merely aspirational—statements of broad principle. Indeed, Article 52(5) of the charter makes the distinction between principles and rights, and limits the legal effect of the principles—not that that distinction is by any means clear. Many legal commentators have described it as entirely confusing. For example, the so-called rights of the elderly are given as an example of a principle as opposed to a right. The noble Lord, Lord Pannick, suggests that certainty and clarity would be advanced by his amendment. I respectfully suggest, on the contrary, that they would be very far from advanced. This would be wonderful for the lawyers, but frankly, for few others.

The other central objection is that the charter, as I indicated, can only ever be used when “implementing EU law”. That in itself is a notoriously uncertain concept. The boundary between what is domestic law and what is the implementation of EU law is one that we are now sensibly intent on simply sweeping away. In response to another intervention of mine in Committee, at col. 549, the noble Lord, Lord Pannick, suggested that the charter would continue to apply just to EU law, which he identifies as all the law which is to be retained under this Bill. What if that law comes to be amended by Parliament or by secondary legislation, as some of it surely will? For example, if we were to consolidate all employment law provision so that in future Benkharbouche-type cases all claims would fall under a new UK statute. I suggest that it would be nothing short of absurd to perpetuate the distinction between EU law and domestic law, a distinction that will recede ever further into history, simply to continue to provide an area of law in which the charter would operate.

In short, I agree with everything that the noble and learned Lord, Lord Goldsmith, had to say back in 2009 when seeking to keep the charter out of the Lisbon treaty. But at least then the charter had the merit of constraining the exercise of legislative power by EU institutions, which were not subject to the constraints of the European convention. At least, too, we were then a member state and our citizens were citizens of the Union. What folly it would now be, as we leave the Union, quite unnecessarily to incorporate the charter as part of domestic law. I urge your Lordships to reject the amendment.