My Lords, Amendment 15 is in my name and in those of the noble and learned Lord, Lord Goldsmith, the noble Baroness, Lady Ludford, and the noble Lord, Lord Deben. I will speak also to Amendments 18 and 19 in this group, which are in my name and that of the noble Lord, Lord Beith.
Amendment 15 seeks to include the European Charter of Fundamental Rights as part of retained EU law, with the exception of the preamble and Chapter V. The preamble contains no substantive provisions and Chapter V confers rights such as the rights to vote and to stand as a candidate in elections to the European Parliament, which plainly will have no application once the United Kingdom leaves the European Union.
Noble Lords will know that the charter sets out a number of important legal rights, from the rights of the child in Article 24 to the rights of the elderly in Article 25. It recognises the rights of persons with disabilities in Article 26, the right to healthcare in Article 35 and the protection of the environment in Article 37.
There are three reasons why I commend this amendment to the House. The first is that the Government’s purpose in bringing forward this Bill has been made very clear from the outset. The Prime Minister wrote in the foreword to the White Paper that the Bill seeks to repeal the European Communities Act 1972 on exit day and to convert into our law the body of EU law which applies at that date. Amendments to the body of retained EU law are for another day. As the Prime Minister said in the White Paper,
“the same rules and laws will apply on the day after exit as on the day before”.
The reason for that is very powerful. As the Prime Minister and her Ministers have repeatedly explained, it is to ensure certainty and continuity at exit date. That has remained the Government’s general position in relation to this Bill. On the 11th and final day in Committee on the Bill, the noble and learned Lord, Lord Keen, made the same point. He said:
“The Government have always said that this Bill is not the place for radical policy change”.—[Official Report, 28/3/18; col. 876.]
I agree.
Clause 5(4) conflicts with—indeed, it frustrates—that central purpose of the Bill. It would exclude an important part of existing law from the law which applies at exit date. In doing so, it would cause precisely that lack of certainty and continuity which the Bill is designed to avoid. Clause 5(5) would add to the uncertainty because it says that, although charter rights will not be part of retained EU law, fundamental rights and principles that exist in EU law irrespective of the charter will be retained. This is, quite simply, a recipe for confusion, especially when European Court of Justice judgments, which will become part of retained EU law on or after exit date, themselves rely on charter rights.
Perhaps I may give your Lordships one practical example of the problems that this will pose: the case brought by Philip Morris, the tobacco company. It challenged restrictions on tobacco labelling and packaging. In its judgment dated 4 May 2016, the Court of Justice in Luxembourg relied, in dismissing the claim by
Philip Morris, on Article 35 of the charter, which confers a right to a high level of human health protection in EU law. That is an absolutely fundamental right.
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As that case demonstrates, one purpose of the charter is to provide a guide to the human rights principles that should inform the interpretation of the body of EU law. If Clause 5 remains in its present terms, good luck to British judges in future cases, who will not be able to refer to Article 35 of the charter but will be asked by parties to infer such a principle of a high level of human health protection from other EU legislation and case law, and will then be asked to use that principle to interpret other provisions of retained EU law. This is not going to promote legal certainty—although it will be very good for lawyers.
The legal position will be even more complex, because paragraph 3(1) of Schedule 1, which is the subject of Amendment 19 in this group, says that although the general principles of EU law will be part of retained EU law, no right of action can be based on them. Amendment 19 seeks to remove paragraph 3 of Schedule 1, because it is simply unacceptable and unprincipled to recognise rights but then to deny a remedy if the principles are breached. So the first reason I commend this amendment to the House is that the exclusion of the charter conflicts with the central purpose of this Bill: to read across EU law rights at exit date to ensure continuity and to avoid legal uncertainty.
The second reason is that the exclusion of charter rights from the scope of retained EU law will have a detrimental effect on the content of our law. During our debates in Committee, the Government presented two mutually inconsistent arguments. They have said both that the provisions of the charter do not need to be retained because they can be found elsewhere in retained EU law, and that to read across the charter would do immense damage to our law. They cannot have it both ways.
On 21 February, the much respected Bingham Centre for the Rule of Law published a report on this Bill. Paragraph 127 states that,
“it is clear beyond doubt that non-retention of the Charter will lead to a loss of the current level of rights protection available to individuals and businesses under EU law”.
I also commend to the House a valuable published opinion on this subject by Jason Coppel QC for the Equality and Human Rights Commission, explaining that the charter has created valuable new rights. In any event, as Mr Coppel explains, this charter is important because it states in simple terms the rights that EU law seeks to protect. Without this charter there will be considerable legal uncertainty, because litigants and their lawyers will need to identify these rights not from a statement such as the charter but by seeking to construct the rights from the mass of retained EU legislation and case law, and then use the principles they contain as aids to construction.
As this is Report, let me report on the concerns about the inclusion of the charter in retained EU law that were raised in Committee. It was said that the concepts in the charter were vague and would need judicial interpretation—but that is true of the vast
majority of retained EU law that this Bill will read across into our law. EU law is not drafted with the precision that characterises the work of our parliamentary draftsmen; it tends to be drafted in the form of general principles that require judicial elaboration. So this is no basis for distinguishing the charter from all other retained EU law.
Concern has also been expressed that charter rights might be used to overturn statutes enacted before exit day—but that is what the Bill allows in relation to the whole body of retained EU law which, under this Bill, is given priority over statutes enacted before exit day. Clause 5(2) says that the principle of the supremacy of EU law continues to apply in relation to statutes and other enactments passed or made before exit day. I emphasise that Amendment 15 will not confer on the charter any greater legal effect than it already has—and has had for a decade. It will not give charter rights any effect in those parts of our law which are distinct from EU law.
The third and final reason why I commend the amendment to the House is that I fear that the Government have a bad reason for making an exception in this Bill for rights under the charter; I fear that it is because they are suspicious of the very concept of fundamental rights. I am puzzled as to which of the rights protected by the charter the Government take exception. Is it the freedom to conduct a business? Is it the rights of the child, the rights of the elderly or the rights of persons with disabilities, or the protection of the environment and of consumers? Or is that the Government are concerned about ECJ decisions applying the charter? If so, which decisions? The Government have not come forward to identify any decisions relating to the charter to which they take exception.
So will the Minister explain what the fuss is about? I ask that question because I suspect that the Government’s concern is purely doctrinal. I ask this House to say to the Government that this Bill should not be used as an excuse to reduce the legal rights that we all enjoy against the state.
Your Lordships’ Constitution Committee, of which I am a member, criticised the approach adopted in Clause 5(4) and 5(5) in paragraph 119 of its report on the Bill, HL Paper 69. We said:
“If, as the Government suggests, the Charter of Fundamental Rights adds nothing to the content of EU law which is being retained, we do not understand why an exception needs to be made for it. If, however, the Charter does add value, then legal continuity suggests that the Bill should not make substantive changes to the law which applies immediately after exit day”.
The Constitution Committee added at paragraph 120 that the approach taken in the Bill would exclude charter rights and retain general principles, and then we would prevent courses of action based on those principles, but that the approach,
“risks causing legal confusion in a context where clarity is needed”.
The exclusion of the European Charter of Fundamental Rights from the Bill is unprincipled and unjustified. I beg to move.