European Union (Withdrawal) Bill — House of Lords, 2018-04-23
Topic: Civil Rights
Richard Keen (Conservative, Centre-right): Why should I say that? Let us be clear: the Charter of Fundamental Rights of the European Union applies only to a member state where it is directly implementing European Union law. As my noble and learned friend Lord Mackay of Clashfern observed, that point was reinforced in a judgment of the United Kingdom Supreme Court just a few months ago, when it said that it is not enough to address something within the scope of EU law. The charter has applicability only where a nation member state is directly implementing EU law. That has to be borne in mind When we leave the EU, whether you wish it or not, we will not be a member state and we will not be directly implementing European Union law. We will have a body of law brought into our domestic law under the heading "retained EU law". It is a body of law which will diminish over time and diverge from European Union law over time as the latter develops What do we find in a document, the Charter of the Fundamental Rights of the European Union, that will assist us after exit, and on what constitutional basis are we to maintain it? The noble and learned Lord, Lord Goldsmith, helpfully referred to the explanatory notes to the charter. It is worth bearing those in mind, because the preamble to the charter, which I appreciate the noble Lord, Lord Pannick, would exclude from his amendment, tells us that, "the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Charter" So the charter is a living document because it is subject to explanations, which, as the noble and learned Lord pointed out, may assist in our approach to the charter itself. But it goes further than that. We may decide, as is suggested by the amendment, to ring-fence the charter within that body of law referred to as retained EU law. But, as the noble and learned Lord, Lord Hope, observed in Committee, if that was to be attempted, the charter, "will have to be largely rewritten if we introduce it into our law, but it is not designed for the kind of situation we are facing after Brexit. It is designed for use within the Union and to be interpreted by the CJEU".—[Official Report, 26/2/18; col. 544.] In that respect he was entirely correct However, just saying that the charter is going to be ring-fenced into domestic law is not even half the story. One has to have regard to the content of the charter itself—something that will apply only to a member state implementing EU law. If I am a little tedious on this point, I apologise in advance, but it is worth noticing some of the terms of the articles within the charter itself; one or two were referred to by my noble friend Lord Faulks. In the context of non-discrimination, it is to be looked at, "within the scope of application of", the treaties. In the context of workers’ rights to information and consultation, it is to proceed not only under the conditions of "national laws and practices" but, "under the conditions provided for by Union law" We will come back to that. In respect of the protection in the event of unjustified dismissal, it is to be considered not only in the context of national law but, "in accordance with Union law" Article 34, with regard to social security and social assistance, is to be addressed, "in accordance with the rules laid down by Union law", not just national law; that also applies in the context of social and housing assistance. With regard to economic interest, under Article 36, the objective is, "to promote the social and territorial cohesion of the Union" Environmental protection is to be, "integrated into the policies of the Union" Consumer protection is concerned with "Union policies". The right to an effective remedy and a fair trial refers to everyone, "whose rights and freedoms guaranteed by the law of the Union are violated", so again we have to have regard to the law of the Union. Within the field of application itself, we have already noted that the charter applies only when a member state is directly implementing Union law What do we mean by "Union law"? Well, it is not international law and it is not national law. The Government, exercising the royal prerogative, can enter into international treaties at the level of international law. That is precisely what they did in 1972. That has no impact on domestic law. It is only when this Parliament decides to draw down those international treaty obligations into national law that those laws become binding upon us. That is where Parliament has to decide. So what is union law? Since at least the decision of the European Court of Justice in Van Gend en Loos in the 1970s, it has been stated repeatedly by the courts of justice in Europe that EU law is not a species of international law. It represents a new legal order for the members of the Union. That is Union law. In a sense it is a form of federal law: a law that applies to all the member states of the Union.