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

Part of the debate – in the House of Lords at 4:15 pm on 23rd April 2018.

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Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 4:15 pm, 23rd April 2018

My Lords, I will say a few words about this amendment. First, it is important to notice that the charter applies only when the EU law is implemented; therefore, the non-discrimination that the noble Lord, Lord Cashman, talked of is applicable only when EU legislation is implemented. There is a recent case in the Supreme Court which says exactly that. It did not allow claims of non-discrimination in a case where the law which was being implemented was not EU law. Therefore, this charter is very restricted in that respect. In addition, while we are in the EU we are implementing EU law, but there is a serious question as to whether we will be implementing EU law at all after Brexit. This is a matter of how you interpret the idea of bringing EU law into our law on Brexit day. However, it is extremely important that the whole charter is being incorporated by this amendment, including these serious restrictions, which are not easily applicable in Northern Ireland or elsewhere. I was interested to hear in Committee about the situation as regards Northern Ireland. The implementation of the charter in its present form in our law would be extremely defective.

Secondly, once we are out of the EU, surely the fundamental part of our constitution should be respected—that is, that the courts of Westminster Hall, as they were, and the courts of justice of our land have no jurisdiction to set aside Acts of Parliament. One of the fundamental aspects of this charter is that it professes to give the right to set aside Acts of Parliament when they are in breach of these particular responsibilities. In my submission it has been a fundamental part of our constitution for many years that Acts of Parliament cannot be set aside by the judiciary. That is nothing to do with the qualifications of the judiciary; it is to do with setting a reasonable control in a democracy in the hands of the elected representatives. You have only to look at the United States to know how different it is where the Supreme Court has the ultimate authority over the constitution of the United States and what the House of Representatives and the other aspect of its legislature can pass.

It is notable that when the noble and learned Lord, Lord Irvine of Lairg, whom I am glad to see in his place, brought forward our Human Rights Act there was considerable respect shown for that doctrine. Human rights are very important. So far as I am concerned, they are of fundamental importance and the European Convention on Human Rights is extremely important. I have sought to vindicate it at every possible stage, including getting Parliament to implement it when the courts in Europe have made a judgment. It is a fundamental treaty that was made after the war. I think a very important part of that treaty was to incorporate an international court because the problems of democracy in some of the European countries were so serious that only an international court was likely to have the kind of authority to deal with them. I suppose Germany is the most blatant example.

The authority of the courts is extremely important, but in our democracy it is limited, and limited for the extremely good reason that the ultimate control in a democracy should be in the hands of the elected representatives. However much we think this charter may have contributed, it can make only a very limited contribution and I am very interested to know, for example, how the noble Lord, Lord Pannick, will deal with Article 1. It applies only when you are implementing European legislation. What happens the rest of the time to your human dignity? This is the sort of problem the charter raises and, so far as I know, there is no solution.