European Union (Withdrawal) Bill — House of Lords, 2018-04-23
Topic: Civil Rights
David Pannick (Crossbench, Unknown): 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.