My Lords, it is a pleasure to follow the noble Lord. As he said, more or less everyone agrees that the Bill in its present state requires substantial improvement. The objective must be maximum clarity, to take a phrase from the
Constitution Committee’s very powerful report, and minimum legal uncertainty. I think that is the right phrase, as legal certainty is just not achievable here. UK judges will be grappling with issues thrown up by this Bill and related legislation for many years. Your Lordships’ duty, it seems to me, is to make their job manageable. Personal views about the merits or demerits of Brexit seem to be largely irrelevant to the performance of that duty.
It is a bit late in the day for legal stuff, so I apologise, but I want to say something about the Charter of Fundamental Rights, which I think is likely to take up a bit of time as the Bill goes through the House. On this point, the Government are probably right to exclude the charter from the body of EU law which is to pass into post-Brexit UK law. I agree with what has been said about that by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Baroness, Lady Deech, but will add a few observations of my own.
The Government seek to justify the exclusion of the charter on the ground that it adds nothing to existing rights, and therefore its exclusion is of no consequence. This is most unpersuasive, as the noble and learned Lord, Lord Goldsmith, has said, because it invites the response, “Why bother to exclude it then?”. It is also incorrect as a matter of law. The retention of the charter as part of UK law would, in fact, make some difference. I recognise that it would provide litigants with a few additional arguments, but it would also lead to considerable legal uncertainty. In particular, it would lead to unnecessary complications regarding its interaction with the Convention for the Protection of Human Rights and Fundamental Freedoms, which, as the House knows, is a very similar foundational document.
The convention was drafted in 1949. As is well known, a large part of it was brought into domestic law by the Human Rights Act 1998. Some parts were left out, advisedly. That Act was very carefully drafted, under no pressure of time—unlike this Bill—and struck a balance between the protection of human rights and the constitutional principle of the sovereignty of Parliament. It achieved that by means of the Section 3 obligation to construe legislation in a way that is compatible with human rights, and by means of the Section 4 power to make a declaration that primary legislation is incompatible with a convention right. It does not give the court a power to strike down legislation on the basis of such incompatibility. Almost every practising lawyer and judge would agree that the Human Rights Act and the convention behind it have worked very well. The scope of the Section 3 presumption has been defined in the case law, and Governments have respected declarations of incompatibility.
The charter was drawn up in 2001, but had no legal force until the Lisbon treaty of 2009, which provided that it,
“shall have the same legal value as the Treaties”.
The UK and Poland negotiated what they thought was an opt-out—at least that is what the politicians said—but in December 2011, the CJEU said that in fact it was a document whose purpose was to remind the British and the Poles that they had opted in.
At this point, it began to dawn on UK litigants and their lawyers that the charter could be invoked. It is a pleasing irony that one of the first litigants who took the road to Luxembourg was David Davis, who was then on the Back Benches. The point of reciting this history is that throughout the period from 1998 to around summer 2016, so far as I can tell, almost no one said, “Look, hang on—the convention isn’t working. The Human Rights Act isn’t working. We need more. We need the charter”. No one was saying that. What has changed? I am not sure.
The charter differs from the convention in two important general respects. First, its scope is limited by Article 51 to the actions of member states,
“when they are implementing Union law”.
The precise scope and meaning of that phrase is debatable. In any event, no such limitation applies to convention rights, so the scope of the convention is broader than that of the charter. On the other hand, the powers of the domestic court pursuant to the charter go well beyond any power conferred by the Human Rights Act 1998 in relation to the convention. If legislation is incompatible with charter rights, the court must disapply it. If legislation is incompatible with convention rights—which will often be identical—the court cannot disapply it but may grant a declaration of incompatibility.
These distinctions can have odd results. In the Benkharbouche case decided a few months ago by the Supreme Court, employees at the Sudanese and Libyan embassies made various claims which were, on the face of things, barred by the State Immunity Act. The Supreme Court held that the Act was incompatible with both Article 6 of the convention and Article 47 of the charter—which resembles the former but is not quite the same. Some of the claims were EU claims within the charter, some were not, but they were all claims about working conditions and pay. The Supreme Court found that the EU claims within the charter could proceed since the Act had to be disapplied, but the latter could not. It was a strange and, noble Lords may think, unprincipled outcome.
Is there harmonious co-operation between the ECHR in Strasbourg and the CJEU in Luxembourg? One might have that there would be, given that Article 6(3) of the Lisbon treaty provides that the EU should itself accede to the convention—and if there were such harmonious co-operation, the potential for conflict and legal uncertainty would be much reduced. But there is not. In December 2014, I think to general surprise, the CJEU issued an opinion which explained why accession to the convention by the EU was not permissible. It is an interesting document that can be summarised, not unfairly, in one sentence: “The continent is not big enough for two supreme courts”—delivered in the manner of the film that the noble Lord, Lord Lisvane, took his maiden aunts to.
The problematic nature of the relationship between the charter and the convention—and between Luxembourg and Strasbourg—is illustrated by the proceedings I mentioned brought by Mr Davis in relation to data retention legislation. Mr Davis relied on Article 8 of the charter and the Digital Rights Ireland case in the CJEU. In that case, the Divisional Court and the Court of Appeal expressed perplexity and concern
that the CJEU had not dealt with a competing and diverging sequence of cases in the Strasbourg court. So the Court of Appeal made a reference to the CJEU and said, “Help us, please—tell us what you mean. Do you mean to expand the charter beyond the convention?”. The CJEU’s response, which came about a year ago, was imperious. It said, in what is again not an entirely unfair paraphrase: “The convention is not an EU text. The charter can reach parts which other conventions cannot, so the UK court’s request for clarification is inadmissible. We are telling you nothing more”.
Allowing human rights law to flow from two separate and, frankly, warring sources is a recipe for legal chaos. The convention works well, and the common law’s protection of human rights is alive and kicking, as the Supreme Court’s judgment in the UNISON case showed. A proliferation of foundational texts is unnecessary and damaging. We do not have time to waste in Committee, and for my part, I think the charter can safely be left in Luxembourg.
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