European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I hold the legal profession in high esteem. However, in Committee, it was obvious to me as a lay person—a person on the Clapham omnibus—that the lawyers disagreed and kept disagreeing. That was very upsetting for me, because it meant chaos instead of clarity—and the same thing is happening again. When I support this amendment, all I can do is apply my intelligence and political knowledge and think about what the safest thing to do is.

In Committee, we heard some noble Lords on the Government Benches insisting that the charter was some sort of bureaucratic bogeyman created by the EU to destroy parliamentary sovereignty and create a whole load of new rights that were fundamentally opposed to the British way of life. Now, later, other noble Lords, including the Minister, assert that the charter does absolutely nothing of significance and that all the charter rights exist elsewhere. Both those points of view cannot both be right—and in fact neither of them is right.

I am not convinced that what we heard is a fair representation of what exists. If two views are so opposed, what are we to believe? We are losing rights that are fundamental to our modern way of life. Very many people outside your Lordships’ Chamber think that Brexit is nothing more than an attempt by elites—that is us and others like us—to tear up everyone’s rights and freedoms. I voted for Brexit, but that was not the Brexit that I had in mind. If we lose the Charter of Fundamental Rights today, I will feel that I have been complicit in doing exactly that. I will leave it to other more learned Lords to try to work out what the exact effect would be of retaining or losing the charter. However, on the Clapham omnibus it feels as if we are spinning round in circles.

I will ask a very simple question. If I am unusually kind and give the Government the benefit of the doubt and accept that the charter rights are all in our law elsewhere, one question would remain. Why would your Lordships’ House replace a simple codified charter with a complex and diffuse legal mess? I simply do not understand that. The general trajectory of good law- making is to take complexity and make it simpler and more elegant. This House often takes a chaotic mix of case law, statutes and treaties and rewrites them in codified statutes which put them all together in one place and make them easier to understand. I cannot think of another example in this or any other Bill where this House has been asked to take a simple legal situation and make it infinitely more complex while seeking to achieve exactly the same thing. It simply does not make sense to scrap the Charter of Fundamental Rights. It is our duty as a revising Chamber to make sure that people outside understand exactly what we are trying to preserve, which is fundamental rights and freedoms.

[Lord Mackay of Clashfern (Con)]

My Lords, I will say a few words about this amendment. First, it is important to notice that the charter applies only when the EU law is implemented; therefore, the non-discrimination that the noble Lord, Lord Cashman, talked of is applicable only when EU legislation is implemented. There is a recent case in the Supreme Court which says exactly that. It did not allow claims of non-discrimination in a case where the law which was being implemented was not EU law. Therefore, this charter is very restricted in that respect. In addition, while we are in the EU we are implementing EU law, but there is a serious question as to whether we will be implementing EU law at all after Brexit. This is a matter of how you interpret the idea of bringing EU law into our law on Brexit day. However, it is extremely important that the whole charter is being incorporated by this amendment, including these serious restrictions, which are not easily applicable in Northern Ireland or elsewhere. I was interested to hear in Committee about the situation as regards Northern Ireland. The implementation of the charter in its present form in our law would be extremely defective.

Secondly, once we are out of the EU, surely the fundamental part of our constitution should be respected—that is, that the courts of Westminster Hall, as they were, and the courts of justice of our land have no jurisdiction to set aside Acts of Parliament. One of the fundamental aspects of this charter is that it professes to give the right to set aside Acts of Parliament when they are in breach of these particular responsibilities. In my submission it has been a fundamental part of our constitution for many years that Acts of Parliament cannot be set aside by the judiciary. That is nothing to do with the qualifications of the judiciary; it is to do with setting a reasonable control in a democracy in the hands of the elected representatives. You have only to look at the United States to know how different it is where the Supreme Court has the ultimate authority over the constitution of the United States and what the House of Representatives and the other aspect of its legislature can pass.

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Therefore, in that instance, Article 168—in so far as it was utilised by the courts when Mr Justice Green drew upon it and recognised that it was “at the epicentre” of European policy-making—will be available in the future to UK courts to draw upon, both its elements and its interpretation, and those elements will be available afterwards. I hope that those remarks are helpful in clarifying where we stand; I will of course return later on to engage with the full debate.

[Lord Mackay of Clashfern]

My Lords, I had the privilege of hearing the noble Lord, Lord Warner, explain the position in Committee. When I heard him speak, it roused in my mind the thought that the decision in the packaging case was extremely important. In particular, the doctrine that the noble Lord, Lord Warner, seeks to establish must have been relied upon by the Secretary of State to defend that decision; important rights of the tobacco companies were at issue as well, such as complicated trademark legislation. When I looked at this, I thought it was absolutely clear that Mr Justice Green was relying upon Article 168 and the principle of the high value of human health in his judgment in favour of the Secretary of State. Therefore, that must have been part of our law at the time when Mr Justice Green was deciding the case, which was in 2016. If it was part of our law then, it will remain part of our law in light of the provisions in the Bill when Brexit comes along.

I was not privy to the earlier situation which the noble Lord, Lord Warner, described, and there may have been some difficulty in having this clarified. Mr Justice Green was deciding this in the High Court. The case went to the Court of Appeal, where in one judgment given by three judges—they say that they all contributed to the judgment—they absolutely affirm that the judge was right and that his approach was in accordance with EU law. That is EU law as it was; part of the law of the United Kingdom in 2016. Therefore, I consider that it must be preserved by the retention of the EU law that we have here. In my view, what the noble Lord the Minister has now said makes it clear that the Government now accept that position. It does not depend so much on the Government’s word as on the fact that the courts recognise this principle as part of EU law applicable in 2016. I cannot see any answer that can be given to try to rule it out. Therefore, I am content with what the Government have come out with and glad they gave me the opportunity to discuss this with them this afternoon. There were quite a number of members of the department there and we had a fairly frank discussion which has, I am glad to say, produced what I think is a reasonable result.

[Baroness Finlay of Llandaff (CB)]

My Lords, it is most helpful that the Minister has given a reassurance and further clarified the position. However, I have a lingering concern about what happens if we do not have Article 168 in the Bill. If a trade deal and negotiation end up going to court, something has already gone terribly wrong. The advantage of having this stress on public health in the Bill is to strengthen the arm of the Government to make sure that public health is not inadvertently compromised.

I found a recent review of the Trans-Pacific Partnership Agreement, which looked at the health impact in the context of trade negotiations. Particular areas of concern related to food labelling, alcohol labelling, tobacco control and the cost of medicines. As this House knows, we have a major problem with obesity in this country. If people are to make real, sensible choices over what they are buying, they have to know that food labelling covers all aspects of food safety, including exposure to toxic pesticides, herbicides and so on, and animal husbandry methods, which have been of concern.

Our producers may not want that degree of labelling because it may damage their profits. I can see that in negotiating trade deals there will be, at times, a balance between profits and establishing the trade deal and holding back in some areas because of public health. The same may happen with atmospheric pollution. and so on. So while I fully accept the intention of the Government to make sure that as, in that article, public health protection and health improvement will remain unequivocal and at the centre of things, I have a lingering concern that there may be drift over time and difficulty in negotiations if we do not have this formally in the Bill.

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[Lord Hunt of Kings Heath]

Perhaps I may ask the Minister to clarify what he said about providing no comfort. Speaking for the Official Opposition and, I think, for the Lib Dems, we have not had sight of the intervention that the Minister made this afternoon. I found that intervention helpful, as was the interpretation given by the noble and learned Lord, Lord Mackay. I am suggesting to the House and to the noble Lord, Lord Warner, a way forward. If the Minister agrees that this matter can be brought back at Third Reading, we will have time to read that intervention. I think that that is a constructive response from the Opposition Front Bench. The noble Lord, Lord Warner, will have to decide what to do but clearly, if we are not allowed to come back to this at Third Reading, we will probably have to test the opinion of the House. It seems to me that a sensible, consensual way forward is to give us time to look at what the Minister said.

[Lord Mackay of Clashfern]

My Lords, perhaps I may break the rules of Report and intervene. The Government have said repeatedly that they cannot do anything about this or that. They have said, “If you want to vote on this, you have to do it now and not at Third Reading”. However, this is a rather different situation in that their position has been made clear rather close to dealing with this amendment, and it is only reasonable that the House should be given an opportunity to study it. I do not think that that would be a breach of the general rule that we try to get rid of everything before Third Reading, and I do not anticipate that those who have tabled the amendment will want anything else.

An important point is that the amendment has raised an issue which I think the Government now accept is covered by the terms of the Bill as it was—the principle of the value of human health recognised in EU law. They have accepted that and the Bill carries it forward. It is only right that those who have brought forward the amendment should have the opportunity to study what has been said. I know that that is not in accordance with the general rule that the Government have set for Ministers but I think that this is an entirely exceptional circumstance, and I will certainly be very disappointed if, instead of getting an agreement, which I believe we have, we have an unnecessary vote.

[Lord Grocott (Lab)]

I very much agree with the point that the noble and learned Lord has made. It may not be within the normal rules of a Report stage debate to have the kind of circular arguments that we have had but, without having the Companion in front of me, I am pretty certain that I am accurate in saying that this is precisely the kind of occasion when it is appropriate to consider a matter again at Third Reading. The rules on when you can bring forward amendments at Third Reading are quite restrictive but, where the Government effectively announce a change of policy or, at the very least, give a further clarification which this side of the House has no opportunity to consider in detail, I cannot see that anyone loses any face whatever. It is entirely consistent with the way in which Third Reading operates for the Government to say, “We may or may not be able to accommodate it but we’ll look at it again at Third Reading”.