Lord Goldsmith previously fought the Charter of Fundamental Rights, what’s changed?

Anyone who really wants to understand just how perverse the House of Lords has become over the Withdrawal Bill should read the debate on Lord Pannick’s Amendment to reinsert the Charter of Fundamental Rights on 23rd April. They should also look at the voting record in the Division List. It tells us a lot.

Lord Pannick accuses the Government of being “purely doctrinal” and wanting “to reduce the legal rights that we all enjoy against the State”. He believes that the Government have a “bad reason” for excluding the Charter “because they are suspicious of the very concept of fundamental rights”. Lord Pannick is a very well-known lawyer. His amendment, with the support of a tribe of former so-called “luminaries” of the higher echelons of the Civil Service, including at least three former Secretaries of the Cabinet, was passed by the House of Lords and will now come back to the House of Commons. He was also supported by a former Lord Chancellor, Lord Irvine of Lairg.

It is important to identify where these and other peers are coming from and their track record on the Charter and Parliamentary Sovereignty. One of Lord Pannick’s strongest supporters was Lord Goldsmith, who as Tony Blair’s advisor on the Lisbon Treaty in relation to the Charter of Fundamental Rights strained every sinew to keep us out of the Charter of Fundamental Rights. This resulted in a botched Protocol which was overridden by the European Court of Justice. The European Scrutiny Committee (of which I am Chairman) investigated all this in an inquiry to which Lord Goldsmith gave evidence. Tony Blair wrongly claimed that he had an opt-out on the Charter whilst he was still Prime Minister. Strangely Goldsmith does not draw attention to his previous opposition to the Charter. In the debate he even asked questions, similar to Lord Pannick, attacking the Government’s rejection of the Charter with the words “is it an ideological reason?” or is it “suspicion about fundamental rights?” asserting that their policy is “sinister”. Lord Irvine of Lairg did not speak in the debate but, when Lord Chancellor responsible for the Human Rights Act 1998, he was at great pains to ensure that it did not infringe Parliamentary Sovereignty.

I mention all this because the obsession for the Charter of Fundamental Rights is dealt a fatal blow by the arguments for Parliamentary Sovereignty by a galaxy of former Law Lords and Members of the Supreme Court who also spoke in the debate. These included Lord Brown of Eaton-under-Heywood, Lord Mackay of Clashfern supported by Lord Hope of Craighead and the former Lord Chief Justice, Lord Judge, the Advocate General for Scotland Lord Keen of Elie, and other eminent members of the Judiciary such as Baroness Butler-Sloss. By any reasonable standards, in terms of legal eminence and weight, those who spoke and voted against the Charter of Fundamental Rights convincingly won the argument but lost the vote.

Let us just think about this. The clarity and logic of these eminent former members of the judiciary, who were against the inclusion of the Charter, specifically and rightly concentrated their legal firepower on the absolute necessity to ensure the upholding of Parliamentary Sovereignty. They argued that our Courts, including the Supreme Court must not be allowed to strike down Acts of Parliament. In the words of Lord Mackay of Clashfern “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”. He adds that it is fundamental to our Constitution that Acts of Parliament cannot be set aside by the Judiciary and he emphasises “that the ultimate control in a democracy should be in the hands of the elected representatives”. He could not be more right. Indeed, Lord Keen of Elie, the Advocate General, said that such striking down would:

“be one the greatest Constitutional outrages since 1689. It would also indicate a total abdication of responsibility by this Parliament …what happened to the Mother of Parliaments? What happened to the concept of the Sovereignty of this Parliament?”

I remember clearly in the Commons debates that the Remainers were claiming that they were upholding the Sovereignty of Parliament and myself and others were undermining it. What nonsense.

Lord Goldsmith also calls in aid “The distinguished Bingham Centre for the Rule of Law”. Now, I may be missing something, but Lord Bingham himself, the greatest jurist of our generation, would have been utterly in agreement with Lord Brown and Lord Mackay and the others. Lord Bingham himself, in his authoritative book “The Rule of Law” says: “The principle of Parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it.” He indicates this could extend even to the rule of law itself.

When this amendment re-applying the Charter to the people of this country returns to the elected House of Commons, any Remainers supporting the Amendment had better take note that the real argument was won by those who fought and died for Parliamentary Sovereignty and against the Charter.