My Lords, clearly there are many hundreds of occasions, set out in the Bill, when delegated legislation is, and should be, acceptable—for example, to remove rights that become redundant after Brexit, such as the right to participate in European elections. Furthermore, the Government face a herculean task in transposing EU law into UK domestic law, and the use of delegated legislation serves the interests of expediency and is not necessarily malign in intent.
That said, the mantra that accompanies the Bill is that it is an enabling mechanism, not a decision-making one. The purpose, we are told, is practical and not policy-oriented. But here I have to disagree with my noble and learned friend Lord Brown of Eaton-under-Heywood and agree rather more closely with the noble Baroness, Lady Lister of Burtersett, in the expression of her concerns. We are told that the Government have excluded the European Charter of Fundamental Rights from the Bill. This exclusion conflicts with the general rule of maintaining the status quo and represents a weakening of human rights protection for UK citizens. Furthermore, it represents a major policy change, something the Government explicitly make clear they do not wish to do by avowing that,
“the same rules and laws will apply after exit as on the day before”.
What does the charter add to the armoury of human rights protection enjoyed currently by UK citizens? The charter is at present part of our domestic law but will not be so after Brexit. It gives UK courts the right to strike down any legislation that infringes charter rights as set out in the general principles of EU law. As such, it is an important tool, affecting rights to education, bioethics, academic freedom, conscientious objection, a fair hearing and an effective remedy, among other rights. The charter also covers digital and asylum rights and pension rights for LGBT people, and it safeguards maternity rights.
The charter has been used in recent years to challenge indiscriminate bulk collection of personal data, and/or by those employed by foreign London-based embassies to ensure fair job treatment and to protect privacy from government intrusion. Crucially, it has been used to ensure that the Government cannot make decisions balancing individual rights and national security in secret. The key feature of the Bill is that it removes the right of challenge in the UK courts for breach of the general principles of EU law. There is no counterpart legislation in UK law to deal with these challenges. So while we are busy transposing EU law into British law, we will wholly bypass the European Charter of Fundamental Rights and it is therefore legitimate to question why.
The Government argue that there is no need for the charter since “all” the rights contained within it are already covered by other legislation including, for example, the UK commitment to the European Convention on Human Rights and the Human Rights Act 1998. However, I remind noble Lords that the Government have also, at other times, expressed the contrary view that the charter adds an extra layer of rights domestically, which is perhaps something they now consider undesirable. While it is the case that similar charter rights are covered in the ECHR and domestic law, there are, as already mentioned, very important omissions.
The Government assert that while every other EU law will be retained, they single out the charter for exclusion, and we are therefore justified in asking them to demonstrate how, where and when there will be legislation to protect the full panoply of rights. It is interesting to note that the opt-out of the charter in the Bill is in marked contrast to the specific safeguards granted, for example, for the use of delegated legislation in relation to taxation and to amendments to the Human Rights Act.
On Report in the other place, the Secretary of State said,
“it is true that after exit it will not be possible for an individual to bring a free-standing claim or for the courts to quash an administrative action or disapply legislation on the grounds that it breaks one or more of the general principles of European law”.—[Official Report, Commons, 11/9/17; col. 585.]
It is difficult not to see this as anything but a pretty major policy change. If the Government wish to revise their human rights protection policies, which they have every right to do, perhaps the withdrawal Bill is not the best place to do it. Such major policy changes should come before both Houses of Parliament in the normal way and be open to detailed scrutiny and amendment. This is a matter of great importance and not one to be roughly pushed aside in the context of the withdrawal Bill.
Finally, the law has to be clear. People must know their rights and, most especially, when and how they might be threatened and what redress is open to them. As was said in the other place:
“The whole point of the charter was to gather all the rights and protections that existed … in other places and put them into one document”.—[Official Report, Commons, 17/1/18; col. 1006.]
Now they are to be once again scattered, weakened and made less accessible. We should retain the charter within the Bill, together with a commitment that Government will not use their delegated powers to weaken substantive human rights and equalities protections by losing the mechanism to enforce those that we currently enjoy from Europe.
9.08 pm