European Union (Withdrawal) Bill — House of Lords, 2018-02-26
Topic: Civil Rights
Peter Goldsmith (Labour, Centre-left): The noble Baroness raises two different points. Some of the rights in the charter plainly do not continue after exit because they are dependent on our membership of the EU. Those include freedom of movement, which is based, as the explanations of the charter plainly show, on the rights that currently exist. There are others, such as the right to vote in European elections, which will not apply Let me make this point now, because it is one of the objections raised to keeping the charter in. As with many other provisions of EU law, there will need to be changes—I think they are described as deficiencies in the Bill; defects. For example, other provisions of EU law refer to bodies to which we will no longer belong or to supervising agencies with which we will no longer be concerned because we will have left the European Union. That is what the provisions of the deficiency orders are intended to deal with. So, too, they can deal with matters under the charter which no longer have effect for that reason The noble Baroness’s first point was a different matter, which was to do with the ambit of Article 3. I am sure that she has it clearly in mind, but the explanations of Article 3 make it clear that: "The reference to eugenic practices, in particular those aiming at the selection of persons, relates to possible situations in which selection programmes are organised and implemented, involving campaigns for sterilisation, forced pregnancy, compulsory ethnic marriage among others, all acts deemed to be international crimes in the Statute of the International Criminal Court" I do not doubt that the noble Baroness would be as opposed to those provisions as the rest of us would be. In relation to reproductive cloning, which may be what she had in mind, the explanations talk about being against reproductive cloning, but that is not the same as therapeutic cloning. We can have debates about that if need be Let me move on, if I may, because I have only started to deal with one aspect of the issue. In terms of the substantive protections that the charter provides but the ECHR does not, although it covers many of the same, reference has been made already to the case of Mr David Davis himself and Mr Tom Watson. I say this not because it is amusing to point the finger at Mr Davis, in his current position, having relied on the charter, as we know he did, but because it is illustrative of something significant. As a Back Bencher, he and Mr Watson brought a case against the provisions of the Data Retention and Investigatory Powers Act—DRIPA. Mr Davis was concerned that they would impinge on the ability of MPs to have confidential communications from their constituents. In his argument, he and his lawyers relied on the charter, and they were successful in doing so. The court agreed that the charter was relevant Another example of new rights, developed rights or rights that have emerged through the dynamic approach of the charter is in the Google Spain case in which the right to be forgotten arose as a result of an examination of Articles 7 and 8 by the Court of Justice of the European Union. So, there are a number of examples where the substantive protections will be different. I have made it clear that there are many examples where the substantive protections are the same, but the purpose behind the Bill is to make sure that the protections for people are the same the day after leaving as the day before It is not just the substantive protections. There are different remedies, one of which has been referred to already—the ability to disapply legislation if that is where the Bill ends up at the end of the day. That is a more powerful remedy than the Human Rights Act. That was demonstrated in the Benkharbouche case when the State Immunity Act was disapplied so that foreign employees of an embassy could bring claims, which they would not otherwise be able to bring, so as to produce a more just situation The Government’s position on the substantive protections appears to have changed. I understood that the Government said that the protections would be the same, but now the formula that appears to be being used is that there will be no significant loss of substantive protection. That is not the same thing. No significant loss of substantive protection means that there is some loss of substantive protection, though someone takes the view that it is not significant. That is not the same as the principle the Prime Minister’s foreword set out Will the Minister respond to the following questions? First, will he confirm that the Government no longer contend that disapplying, excluding the charter, will lead to all the same existing substantive protections, or do they accept that some of them will not exist? If so, will he tell the Committee either now or subsequently what those are? Secondly, I referred to the phrase "no significant loss of substantive protections". Does the Minister agree that that leaves aside the question of whether procedural or other protections will be excluded as a result of excluding the charter from this protection? I ask the Minister to identify what the differences are and whether he accepts that there will be a loss of protection, even though the Government wish to say that it is not significant, so that the Committee can judge. Also, he will need to say, please, why that meets the objective the Prime Minister set in her foreword to the White Paper.