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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 Howarth of Newport Lord Howarth of Newport Labour 3:30 pm, 23rd April 2018

My Lords, two main arguments have been put forward today and in Committee for writing the Charter of Fundamental Rights into our law. One is that we must bring the charter across into our domestic law because it would be anomalous not to do so; it would be inconsistent with the Government’s purpose in this Bill of transposing the whole body of EU law that presently binds us. It would be offensive for me to pray in aid Ralph Waldo Emerson’s dictum,

“A foolish consistency is the hobgoblin of little minds, adored by little statesmen”,

and peculiarly inappropriate when the noble Lord, Lord Pannick, is the most ardent advocate that consistency should be our guiding principle here, supported by his distinguished co-signatories. Nevertheless, consistency is a poor justification for incorporating the charter. Schematic approaches will not serve us well in these impassioned and volatile political times.

I recognise the compelling practical reasons for transferring existing EU law into our domestic law, so that we are not sucked into a legal void at the moment we cease to be a member of the EU. However, it does not seem a necessary or desirable consistency to include in that transfer a charter which does not have value as the fountain-head of human rights and whose title, the Charter of Fundamental Rights of the European Union, portentously symbolises the very jurisdiction that the people of this country have voted to reject and which will be a diminishing element of our law as they are progressively released from it through their Parliament’s future legislative work.

The other main justification offered is that we need to hold on to hard-won and precarious human rights. That is a good motive, which I share, but it does not follow that we should transpose the charter. People who want to do so say that our constitution has saddled us with an elective dictatorship, that Parliament cannot be trusted in these days of political extremes, and that the charter should be valued as a foundational document in a developing written constitution. It is suggested that we need more checks and balances, not so much against the Executive as against Parliament itself. Happily, for those of this cast of mind, the judges are available. They, it is hoped, will imbue our polity with a higher wisdom than that of the people’s elected representatives, disapply statute when Parliament gets it wrong and rescue us from ourselves and our tendency to excess.

Have we, as parliamentarians, entirely lost confidence in the institution that we have the honour to serve and of which our country was once so proud? As we debate Brexit it sometimes appears that for many remainers almost anything is preferable to resuming full responsibility for our own decisions in our own parliamentary democracy. “Yes”, they say, through gritted teeth, “of course we respect the vote of the people on 23 June 2016, but actually it would be safer to stay in a protectionist customs union and a single European market in whose governance our elected representatives will have no say, and with Parliament trammelled by unelected judges constrained to follow the developing practice of the European Court of Justice”. If parliamentarians do not trust Parliament, why should the people do so, and then what happens to our democracy? I say gently to my noble and learned friend Lord Goldsmith that this is not about ideologically driven hatred of the European Union, as he suggests in today’s Guardian, but about commitment to the renewal of parliamentary democracy.

I am not a lawyer and I am happy to be corrected if I am wrong but, as I understand it, the charter, like other EU law so long as it is retained in the UK, permits—indeed, requires—judges to disapply parliamentary legislation which they determine is inconsistent with it. This supremacy of EU law largely explains the revulsion of so many in our country from the European Union. That the courts should have power to disapply statute seems to many Britons to have turned our constitution inside out and back to front. A majority of them voted to take back control of our law and our system of justice. Let us not offend them by giving the charter a further lease of life in our system of law.

The proliferation of human rights documents since the Second World War and the gains within the political realm of rights-based culture have, I recognise, been the achievement of much moral endeavour and are legitimately seen as a historical advance of liberal values. The noble Lord, Lord Pannick, gave as his third reason for wanting to incorporate the charter his view that the Government have a doctrinal hatred of human rights. That was a rhetorical flourish but not a very substantive argument. Certainly, for my part, I have no hostility to human rights but the charter is not the finest flowering of this culture, expressing as it does the judicial activism of a European Court of Justice that can fairly be characterised as imperialist. Nor has anybody been able to explain how in practice the charter can be accommodated to our national legal traditions. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, spoke of constitutional incongruity.

We should also recognise that the price to be paid for the entrenchment, as enthusiasts would have it, of rights in law is a curtailment of democratic politics. The discernment, interpretation and application of human rights by the courts, in an ever more crowded field of rights, in which rival and conflicting rights and interests have to be reconciled as best they may, becomes increasingly a political task. Should we as politicians ask the judges to undertake such political tasks? Are we shirking our responsibilities? I think we are.

The Government assure us that the rights set out in the charter are either already protected by our law or, if any go missing, can be so protected if Parliament chooses to legislate for that. Indeed, they can be added to by Parliament. We will do better to proceed on that basis. The right to dignity proclaimed in Article 1 of the charter—if such a right can in reality be protected by law—can therefore be safe in our hands. As we cease to be a member of the European Union, we should not commit the parliamentary indignity of appropriating the Charter of Fundamental Rights of the European Union to the law and constitution of the United Kingdom. I say to noble Lords who were happy with the tide of EU law coming in that that tide has now turned and it is futile to resist it.