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Andrew Tettenborn: The Left conspires to make Brexit a Trojan Horse for yet more union power


Legislation is boring and impenetrable. Unfortunately, politicians know this and are only too happy to benefit from the fact that most of us can’t, or won’t, see what they’re up to when they try to change it. The shenanigans over the Great Repeal Bill provides a nice vignette of this principle in action.

Whatever you may think of the Bill, Clause 5(4) is mercifully succinct: “The [EU] Charter of Fundamental Rights is not part of domestic law on or after exit day.” Since the Charter is an EU document aimed at increasing respect by the EU for fundamental rights, child of the EU Lisbon Treaty (willingly waved through by Tony Blair, who regarded it as blithely unimportant), you might have thought this was an obvious move. But the Opposition and others have chosen to pick a big fight on this, saying that retaining the Charter is a key red line for their support for the whole Bill. Why? Partly mischief-making, unsurprisingly; but partly, one suspects, a plan to smuggle in yet more powers for the courts and the human rights establishment to make life difficult for any right-of-centre government in future. Let me explain.

By way of background, the Charter is a curious document. In case you’ve never come across it, it combines yawn-creating political rhetoric (Art.12.2, “Political parties at Union level contribute to expressing the political will of the citizens of the Union”; Art.22, “The Union shall respect cultural, religious and linguistic diversity”) with a collection of more legal-sounding provisions. These it seems apply whenever Euro-law is applied in the UK, though not currently to purely domestic law (more of this below).

Some of these latter impose duties on the EU or give rights to its citizens in Member States (Art.40, “Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State”). It shouldn’t take you long to work out that the idea of incorporating articles of this sort into UK law once the UK is not an EU member State is preposterous. On this point we can only assume that Labour couldn’t be bothered to get a proper briefing (or perhaps they delegated the job to Diane Abbott).

Other articles replicate stuff already in the European Convention on Human Rights, which is already part of our law because of the Human Rights Act (Art.7, “Everyone has the right to respect for his or her private and family life, home and communications”). The same comment applies as above. Taking away these provisions won’t make a blind bit of difference, so why the fuss?

What really attracts Labour is a number of other provisions that go much further than the ECHR and on their face are not aimed at the EU. Currently these are not applicable outside the EU sphere. But if the Charter was expressed to be applicable in English law? Now you’re talking.

Take some examples. Art.21 bans discrimination on, among other things, political or any other opinion and ethnic or social origins. Art.27 gives an open-ended right to worker consultation; Article 28 a similarly open-ended right to collective union action; and Art.8 effectively enshrines the EU data protection regime. At least in principle, we face the prospect of a law giving the courts a roving commission to decide if, for instance, we must prevent a bank refusing to hire a doctrinaire McDonnell-style Marxist (opinion), an estate agent choosing to hire a Harrovian as more likely than an Eastender to connect with the clientele (social origin), and whether we must allow sympathy strikes (collective action). Moreover, because the Charter would remain in force in the EU, no doubt our courts would in practice feel inclined, even if not bound, to follow whatever expansive interpretation the European Court of Justice chose to give those provisions. You can almost see Jezza and Unite salivating at the prospect.

Of course no-one says that what they want from the Charter is one of the biggest extensions of state and judicial power in recent years. It’s just a matter of continuity after Brexit; or (according to Liberty, Amnesty International and leftish ginger group 38 Degrees) protecting in future the human rights we already have. It’s only if you read the small print that you see the scam they’re trying to pull.

But that’s an old technique of the Left. To create misgivings about Brexit, sow a few carefully-chosen half-truths, sit back and wait for someone else to do your dirty work by repeating them. We have already seen this happen once with the single market, with Remainers and others happily acquiescing in the common misconception that it’s just about tariff-free access and suppressing the fact that the single market is not only a free trade area but a restrictive practices club that allows well-paid EU pen-pushers to order businesses around even if they do no trade with the EU whatever. If we’re not careful, we’re about to see it again. As I said, legislation may be boring and obscure: but that means you’ve got to watch politicians even more closely when they have an axe to grind.

(Image: Roger Blackwell)

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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