My Lords, we now come to the first group of amendments that deals with the exclusion from the Bill of the European Charter of Fundamental Rights. A number of amendments relate to the exclusion of the charter and to its specific provisions, so this may be a convenient place to debate the general principle of what the Government are proposing and the issues to which that gives rise. I shall therefore speak also to Amendments 14, 20, 25 and 34. Amendments 46, 47, 333 and 347 are consequential and I apprehend that there will be no need to say anything more about them.
The starting point for these amendments is the Government’s decision to exclude the European Charter of Fundamental Rights from the carryover into domestic law of existing EU law that the Bill is otherwise designed to achieve. As noble Lords know, and as the Government have been at pains to point out, the purpose of the Bill is to maintain legal continuity, certainty and stability for businesses and individuals by incorporating EU law as it stands into UK law. As the Prime Minister said in her foreword to the White Paper, the purpose is to ensure that:
“The same rules and laws will apply on the day after exit as on the day before”.
The White Paper goes on to explain that it will then be for democratically elected representatives in the UK, in this Parliament and the devolved Administrations, to decide whether to change that law after full and proper scrutiny and debate. This decision to bring EU law into UK law at the moment of exit is an essential part of the plan to provide clarity and is necessary, it is said by the Government, to bolster confidence and planning as the Brexit process comes into effect. The noble Baroness the Lord Privy Seal said at Second Reading that this is,
“about ensuring that people’s rights are maintained. It is vital to a smooth and orderly exit from the EU”.—[Official Report, 30/1/18; col. 1374.]
However, there is one glaring and deeply troubling exception to the proposal to bring EU law into domestic law so that it is the same the day after exit as it was the day before: the exclusion of the charter, in its entirety, from this exercise.
In another place, the Solicitor-General described the exercise as downloading EU law into domestic law, but what is not being downloaded is the charter. In another place, Sir Keir Starmer noted that although thousands of provisions of EU law are being converted into domestic law, and may have to be modified in some sense after that exercise, only one provision in the thousands on thousands of provisions of EU law is singled out for extinction, and that is the charter. That gives rise to a conundrum.