My Lords, there are good legal reasons to oppose this group of amendments. I will be brief. I shall not go into equivalence; for example, we already have child protection in English law.
First, we never intended to adopt the charter and did our best to opt out. It has never been analysed, debated or adopted by this House or indeed the other place. It entered our law only in 2013 after being rejected as unnecessary and confusing. It is badly drafted with its references to principles and other rights. Article 3, which refers to the prohibition of
eugenic practices and the selection of persons, whatever that means, could be used by those who oppose embryo and stem cell research to block our leadership in that field. The wording in that article is more suitable for the much more conservative, unregulated and, indeed, backward European practices. The articles relating to dignity and scientific research are vague and woolly. Its scope and application are uncertain and meant for European institutions, not individual rights. Interpretation of the charter, if retained, would be a bonanza for lawyers involved in litigation. I can see decades of lucrative litigation stretching ahead, and I point out that I am not a practising lawyer.
Secondly, it offends against the rule of law and parliamentary sovereignty, in that it would allow our judges to invalidate British law, not just to declare it incompatible with human rights or to treat other laws as having priority but to set it aside and nullify it. If you believe in parliamentary sovereignty now and its full recovery after Brexit, if you believe that this House should make and unmake laws, while judges interpret and apply them, then the power to set aside our laws is unacceptable. It is in Article 51(1) of the charter and has been used on at least one occasion—with unfortunate results, as my noble and learned friend Lord Brown has just pointed out. The charter’s continuance would elevate judicial policy views over the elected Parliament and give judges the very contentious interpretation powers that they have indicated they do not wish to have in relation to EU law. This is the reason for opposing the amendment put forward by the noble Lord, Lord Faulks. Although one can understand where he is coming from, the interpretation of scope would be a nightmare, and cherry picking, as both amendments do, is surely not allowed in European areas.
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My third reason is that, if it were retained, there would be more uncertainty, offending against the rule of law. This is because the retention of the charter would be a Trojan horse with a tapeworm in its intestines; its interpretation would depend on the ongoing, never-ending, twisting and turning judgments of the ECJ. For years, legal writers have pointed out the shortcomings of the ECJ. It is largely composed of civil servants and professors from the 28 countries, not judges as we know them. No dissenting judgments are allowed. The tenure of judges is short enough, and their pay substantial enough, to make the prospect of non-renewal by their countries after their short term a real one that can be perceived as affecting their independence. The court, unlike our courts, has an avowed mission: the furtherance of the EU and its integration. This is not the Supreme Court that we are talking about. To include its judgments in our law after Brexit would be to give the ECJ superiority over the Supreme Court and Parliament-made law, completely contrary to centuries of common law.
And what a failure the charter has been in protecting human rights in Europe. On Poland’s interference with the judiciary, Hungary’s interference with higher education, the imprisonment of Catalonian independence leaders, the diminished freedom of the press in Slovakia and Bulgaria, the rise of extremist right-wing parties and
the treatment of Roma and migrants, the charter is impotent. For these reasons, a vote for the amendments to keep the charter is tantamount to a vote of no confidence in the ability of our judges and this Parliament to make and interpret the law.