My Lords, I must have explained myself poorly in my intervention on the noble Baroness, Lady Deech, or else the noble Lord, Lord Faulks, has misunderstood me. I think I said that the charter did apply when national law implemented EU law, not just when it is EU institutions, and this Bill is meant to freeze EU law. I do not think there has been a response to the point made by the noble Lord, Lord Pannick: why, uniquely, should the charter be the only element that is left out? As one commentator, Professor Steve Peers, has said, taking the charter out of the case law is like trying to take the egg out of the omelette.
The charter is the key to the rest of retained EU law and its exclusion runs counter to the claim of continuity and certainty that this Bill is meant to deliver. The Explanatory Notes to the Bill say that:
“As a general rule, the same rules and laws will apply on the day after exit as on the day before”,
and that one of the four main functions of the Bill is that it,
“converts EU law as it stands at the moment of exit into domestic law before the UK leaves the EU”.
It will then be for Parliament, and where appropriate the devolved legislatures, to make any future changes. Why should the charter be different from the rest of EU law which is retained under this Bill?
It is perfectly possible to retain the charter and deal with any redundant sections after exit, just like for every other part of retained EU law. If the charter genuinely adds nothing useful, then that can be sorted out in the same way as for other EU law provisions. The arguments can take place later. Yet the only exception to the Government’s general approach is Clause 5(4), which provides that the charter will no longer apply in EU domestic law after exit day. As the noble Lord, Lord Pannick, has said in Committee and now, that position is simply unsustainable.
The Government’s rationale that it is not necessary to retain the charter because the rights it contains can all be found elsewhere in domestic law, and consequently that there will be no loss of rights, is disagreed with in advice from Jason Coppel QC for the Equalities and Human Rights Commission. He highlights that there will be gaps in protection—for instance, in relation to children’s rights, data protection and non-discrimination.
Various articles of the charter have been referred to in the debate so far. Article 1, providing that “Human dignity is inviolable”, was objected to, but it has been used by the European Court of Justice to help protect LGBT asylum seekers from inappropriate psychological tests and in cases concerning the extradition of individuals to countries where they would face unacceptable detention conditions. That is not some airy-fairy right that we should not care about.
Mention has been made of Article 8:
“the right to the protection of personal data”.
I find it a bit rich that this was relied upon until the Secretary of State pulled out of what was originally the David Watson case, in his successful challenge to
DRIPA. Article 8 will not be fully and clearly replicated after withdrawal, even with the retention of the general data protection regulation.
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Article 24 on the rights of the child is a stand-alone right not to be discriminated against. It has no domestic equivalent in UK law. Although the UK has ratified the UN Convention on the Rights of the Child, it has not been incorporated in full into UK law and, therefore, unlike the right in the charter, it is not directly enforceable and cannot be relied upon by children whose rights have been infringed. This is also true of Article 26 on the rights of persons with disability. It goes further than domestic law, including providing for specific measures to be put in place to ensure independence, social and occupational integration and participation in community life.
Article 47, on the rights to an effective remedy, is broader than the Article 6 convention right to a fair hearing in the determination of civil rights and obligations because it extends to cover areas such as immigration hearings which the convention does not protect. This is timely, given what we have heard about Windrush cases in the past week. It might also apply to closed material procedures in order to ensure a satisfactory guarantee of fairness. It has also been interpreted as requiring legal aid to be provided in cases where not doing so would make it impossible to ensure an effective remedy.
The ins and outs of how far these and similar rights should continue to apply as retained EU law is or is not modified is a debate that can be held in the future, along with all the other provisions in the Bill. There has not been a good answer in this debate to the uniqueness of getting rid of the charter.
The notion that the charter merely recognises rights existing elsewhere in EU law and adds nothing new is certainly not the view of Suella Fernandes MP, who is now a Minister in DExEU. She wrote in the Daily Telegraph last November of how lawyers will love the extra layer of rights in the charter. So certainly, someone who is now a Minister in DExEU believes that there are extra rights in the charter which do not exist elsewhere. It is strange that three days after that article, Dominic Raab, who was then a Minister, told the other place that the Government were unequivocally committed to avoiding any reduction in substantive rights by omission of the charter.
We have had a series of conflicting assertions—that the charter adds nothing and that it adds an unnecessary layer of rights—but it cannot be both. To the extent that it is necessary, that can be decided, at leisure, along with the rest of retained EU law.
The Joint Committee on Human Rights examined the Government’s right-by-right analysis and concluded that the charter does protect rights which do not have equivalent legal protection elsewhere in UK law. As well as the Davis and Watson case, the article on data protection was in the Google “right to be forgotten” case and there was a judgment the other day on the right to be forgotten.
The Bingham Centre, which has already been mentioned, has pointed out that the charter has much more than interpretive status. It provides a freestanding
course of action by which direct challenges can be made to laws and effective remedies obtained, including the setting aside of primary legislation, as the Supreme Court did in the Benkharbouche case. That has been objected to by some people, but it did secure rights which would otherwise have been excluded.
Professor Catherine Barnard, an expert in EU law at Cambridge, told the EU Justice Sub-Committee that it was all very well to say that the general principles of EU law would be retained, but she contended that the charter is at least reasonably transparent on what the rights are, although the general principles are not clear:
“I imagine that every lawyer in this room would come up with a slightly different list of what constitutes a general principle”.
The point is that we know what is in the charter but no one has been able to produce a list of the general principles—and we have the problem in Schedule 1 to the Bill, which provides that the general principles do not have direct effect and cannot be enforced. If you cannot enforce the general principles, by definition, you cannot get a remedy. Frankly, the Government’s case as to why we do not need the charter, and specifically why we need to get rid of it now, is full of holes. Why can we not deal with it in the same way as we will the rest of retained EU law? If we do not retain the charter, we could find ourselves in the very odd position of applying retained EU law that the EU has found to be in breach of the charter. We would keep the law but would have got rid of the protections which have already struck down the law according to the European Court of Justice. That would be a rather strange position to find ourselves in.
Another anomalous result would be if, after exit, EU citizens are protected by the charter while UK citizens are not. Article 4 of the draft withdrawal agreement suggests that that may well be the case. I think that we can rely on the European Parliament, which demanded in a resolution a year ago that the withdrawal agreement must be in conformity with the treaties and the charter, failing which it will not get the consent of the European Parliament. We could discover that a next-door neighbour who is an EU citizen continues to enjoy the benefits of the charter of fundamental rights under the withdrawal agreement, while we do not.