European Union (Withdrawal) Bill — House of Lords, 2018-06-18
Topic: Civil Rights
Richard Keen (Conservative, Centre-right): My Lords, with the leave of the House, I will speak also to Motions P and Q These are complex matters which, for understandable reasons, have raised particular concerns across the House. Nobody on any side of this House wants to see our rights and protections diluted when we leave the European Union. I therefore appreciate why your Lordships asked the other place to think again about the exclusion of the Charter of Fundamental Rights and rights of action based on the general principles of EU law. The Commons has done just that and has made it clear—for the third time in the passage of this Bill, and by increasing majorities each time—that it does not want these elements of the EU legal system retained when we cease to be under obligations as an EU member state. In line with established convention, we should now respect the will of the elected House on these matters Let me say a little more to address directly some of the concerns that I know some noble Lords still have, and to respond directly to some observations that have been made. The simple fact is that the Charter of Fundamental Rights was not intended to, and did not, create any new rights. As protocol 30 makes clear, it reaffirmed the rights that were already recognised in EU law: that is, law that is being retained in the United Kingdom under the terms of the Bill. As the illustrative analysis we have published sets out in greater detail, most of the fundamental rights protected in the charter are also protected in UK law, most notably under the Human Rights Act 1998, in the common law and via specific statutory protections—for example, those in equalities legislation. Rights saved by the Bill and many of the issues currently justiciable via the general principles of EU law will continue to be justiciable without rights of challenge based specifically on the charter or general principles being retained, because other sources of rights will continue to exist and operate in UK law. This includes, for example, the right to equal treatment and non-discrimination, which will continue to be protected by existing, long-standing domestic rights of action By contrast, as we have said, keeping rights of challenge based on the charter or general principles, which could result in disapplication of primary legislation, would be inconsistent with the principle of parliamentary sovereignty. It would also directly undermine the legal certainty provided by the Bill if these rights are retained way into the future but in relation only to a limited and reducing body of law The Government have gone to considerable lengths to listen and respond to concerns, particularly in relation to accrued rights. We want to get the balance right. Therefore, in rejecting this House’s amendments, the other place has agreed to a significant additional delay to the prohibition on certain general principles rights of challenge to three years after exit. This approach seeks to strike a balance and a fair compromise between strongly held views on all sides. Inevitably, some noble Lords will still disagree and argue that we should go further, or indeed that we should not go so far, and I understand the range of views. It is, however, for the elected House ultimately to determine these matters and that is what it has done. I suggest that we should now respect that decision I turn to the amendment from the noble Lord, Lord Beith, in respect of validity challenges. He is absolutely right to draw attention to this technical yet important issue and I am grateful for the diligent and constructive way in which he has done so. The Government’s view is that it would not in general make sense to create for our domestic courts an entirely new jurisdiction in which they are required to, in effect, step into the shoes of the CJEU and consider, for example, questions around whether the relevant EU institution misused its powers or complied with the applicable procedural requirements. It is nevertheless important to have a mechanism to enable Ministers, with Parliament’s agreement, to provide a right of challenge in domestic law to the validity of retained EU law in some circumstances. The original amendment from the noble Lord, Lord Beith, made on Report, would have removed that right, which is why we could not agree to it and why the elected House has rejected that proposal. I urge the noble Lord and this House to agree with the Commons in that decision. In doing so, however, perhaps I can also try to reassure him and other noble Lords on this point and say a little about the amendment in lieu that he has proposed We have always recognised that there may be some circumstances where there is good reason for the validity of an EU instrument to be challenged in a domestic court. One possible example is where a decision of an EU institution or body is addressed to an individual or business in the United Kingdom but later overturned by the CJEU in so far as it applies in the EU. That individual or business will continue to be bound by the decision in the United Kingdom, unless the United Kingdom courts could overturn it as well. We have not proposed—and I do not suggest that we do so today—that regulations would deal only with circumstances where, for example, a public interest test is met. That is, however, an interesting suggestion which we are happy to consider as we discuss with Parliament and others the potential content of any regulations. But I can confirm, for the avoidance of any doubt, that the Government in no way intended to cherry pick which individual cases would be allowed to continue before domestic courts. Any regulations we make would be most likely to specify certain types or class of case that could be brought after exit. To be clear: this is about preserving rights and protections This is a technical issue that may specifically impact individuals and businesses and we are therefore keen to listen to and take into account the views of Parliament and undertake consultation with stakeholders. Following that, and subject to parliamentary approval, our intention would be that regulations would be in place before exit day. However, such a right of challenge may be appropriate in circumstances that we cannot accurately predict at this stage—or, indeed, before the point of exit—and the power would therefore permit further regulations to be made after exit if Parliament agrees Turning specifically to the amendment in lieu of the noble Lord, Lord Beith, I appreciate the constructive spirit in which he has tabled it but we cannot accept it. The effect of the noble Lord’s amendment would be that in the event that Parliament did not approve any regulations allowing for certain validity of challenges to be available, or if by the point of exit no class of case had arisen that the Government considered—and Parliament agreed—should be permitted, all such challenges would as a default be permissible in domestic law. As I noted, allowing for a right of challenge to the validity of retained EU law would be to hand our domestic courts a wholly new jurisdiction. These are not cases they are able to hear at present. Simply saying that they can now hear all such cases without saying any more would raise uncertainty—for example, which courts would hear these cases and, crucially, who would defend any challenges Any regulations the Government brought forward would be able to address these finer points in the specific circumstances they cater for, but the effect of the noble Lord’s amendment would be to provide for a situation where none of this is clear and our courts would, in effect, be left to try and work it out themselves. The core purpose of the Bill is to minimise legal uncertainty as we exit the EU. This amendment therefore works directly against that. I appreciate that may not be the noble Lord’s intention. He wishes to avoid a lacuna in the event that any regulations that allow for challenges are not made before exit. However, I repeat my firm assurance that the Government’s clear intention is to have regulations on this in place before exit day. In the light of that, the amendment is unnecessary. I hope that, in clarifying the Government’s intentions, I am able to address the concerns expressed in both Houses. I beg to move Motion D1 (as an amendment to Motion D)