Doughty Street silk answers questions posed by Lord Pannick and others
“There are literally thousands of EU provisions being brought over by the [Brexit] Bill. The EU Charter is the only piece of EU law that is not being brought over,” Keir Starmer QC, the shadow Secretary of State for Exiting the European Union, told the House of Lords Constitution Committee today.
In answering a question posed by Blackstone Chambers‘ Lord Pannick QC (of Article 50 challenge fame), Starmer clearly disagreed with the government’s position that “all the rights were in UK law in any event and that the UK, therefore, didn’t need the EU Charter”. He labelled the government’s promised paper pinpointing exactly where all those rights were in UK law a “completely pointless exercise”.
The EU Charter is a red-line issue for Brexiteers as it is seen as extending the scope of what they see as European-sponsored human rights laws.
The most high-profile recent example of the impact of the Charter was the Supreme Court case of Janah v Libya; Benkharbouche v Embassy of the Republic of Sudan involving two workers at an embassy relying on the Working Time Regulations. The UK’s top court held that domestic legislation which granted immunity to the embassy — and so it could not be sued by the workers over working hours — was incompatible with the Charter.
The government’s paper is scheduled for publication early next week as the European Union (Withdrawal) Bill reaches the Committee stage of its turbulent passage through the House of Commons.
Interestingly, during the most recent debates on the Brexit Bill and the Charter, one MP and barrister, Geoffrey Cox QC, argued that the EU Charter rights were a bad idea because they left so much to the “elderly white judges” in the Supreme Court:
“The point is that these broad and general rights [of the EU Charter] are ripe with value judgments. Quite often, they are not appropriately dealt with by six or seven elderly white judges in a Supreme Court; they are better resolved on the floor of this House and by a democratic vote in this parliament.”
Also on the subject of judges being given a lot of power, the Committee touched on the thorny issue of what the national courts should do, post-Brexit, in interpreting EU law which has been transposed into UK law. Starmer argued before the Committee that the bill as drafted is putting the courts in an extremely difficult position, having to rule on policy decisions:
“The question is do we want to retain alignment with the EU or diverge? If the European Court of Justice was to make a ruling in a few years’ time which affected retained [EU] law, then our courts will have to decide what to do, align or diverge, and that is actually a deeply political decision.”
The debate goes on, the countdown continues.