1. What discussions has the Counsel General had with UK counterparts in relation to the retention of the EU charter of fundamental rights in UK law following Brexit? OAQ51510

I thank the Member for the question. The Welsh Government has been clear that UK withdrawal from the EU should in no way lead to a dilution in human rights protections, or, indeed, any other social, environmental or employment protections. I fully support that position and advocate for it.

Thank you for that answer, Counsel General. The UK Government's approach to transferring EU law into UK law through the European Union (Withdrawal) Bill will not give the protection we should have for maintaining the EU charter of fundamental rights after we leave the EU. Senior lawyers are very concerned that the UK Government's refusal to incorporate the charter into UK law will weaken human rights protection. As an example, they've highlighted the free-standing right of equality under article 21 that has no counterpart in domestic law. In fact, the Equality Act 2010 has no constitutional status either. It's clear that the UK Government's legal analysis is similar to their sectoral analysis—a total sham. Following our departure from the EU, Wales wants to remain a nation that respects everyone and has reserved in statute the rights that we have gained in the EU. What analysis has the Welsh Government made of the impact of Brexit on the rights of Welsh citizens that have been gained as members of the EU, and how has it used the continuity Bill that it has prepared to include any protection of those rights?  

I thank the Member for the question. As his question makes clear, the charter of fundamental rights extends beyond the convention of human rights and includes other rights; he mentioned equality rights—there are others around personal data and so on. 'Securing Wales' Future', which was produced a year ago by Welsh Government and Plaid Cymru, made it clear that in leaving the EU we need to be vigilant and insistent that the protections and standards that benefit our citizens and the well-being of society as a whole are not eroded. For that reason, and others, I've previously noted our concerns that the EU withdrawal Bill does not include protection for the charter itself. 

Now, he mentions in his question there is some legal dispute or discussion around the effect of that charter, but it's clear that it can be used to practical effect to protect human rights for people across the UK. In a Supreme Court decision before the end of last year, for example, the charter was used to disapply primary legislation that was not in accordance with the provisions of the charter. So, there are absolutely clear and categorical legal rights and remedies that are available to members of the public as a consequence of the incorporation of the charter. 

As the Member mentioned, the UK Government published at the end of last year an analysis, in its words, of the comparison between provisions of the Act and ongoing law beyond Brexit, and is continued that, unfortunately, it will not include the EU charter within the Bill, which is a matter of great regret.  

You mentioned the continuity Bill. The Welsh Government has been clear that the place for preserving those protections that I've just mentioned is in the UK's new withdrawal Bill. There are amendments that we both will be aware of that will be put forward in Parliament in an attempt to secure that inclusion in the Bill. However, in the event that the Welsh Government was forced into introducing our own Bill, we would obviously look to do whatever is possible to ensure that the rights of Welsh citizens are not eroded. 

I thank David Rees for raising this important issue. The Equality, Local Government and Communities Committee has been looking at human rights over the past few months, specifically on the same issue that you’ve raised: the concern expressed by a number of organisations the length and breadth of Wales on the decision of the UK to leave the European Union, as well as the UK Government’s proposals to change domestic legislation.

During our evidence sessions, we heard from a number of experts who argued that not only does the Assembly have the power to introduce a human rights Act for Wales, but that there is also a strong argument for doing so in order to defend Wales from any weakening of human rights through the UK Government. So, what is your view on having a human rights Act for Wales?

As the Member will know, the devolution settlement for Wales means that the Senedd and the Government of Wales operates within the context of the UK Human Rights Act, and that’s what the Welsh Government wants to see continuing: that the framework that provides fundamental rights for people in Wales continues beyond the period after we have exited the EU, not only through the Human Rights Act, but also, as you heard a moment ago, through the charter that expands on the rights of people in Wales. And that’s what I’d like to see—the Westminster Act being amended to ensure that those continue to be a part of UK legislation as a whole as we exit the EU.

Will the Counsel General agree with me that the democratic institutions of the United Kingdom—Westminster, Cardiff, Edinburgh and Belfast—are perfectly capable of defending the human rights of British nationals? They need no assistance from unelected judges based in Luxembourg. When the charter of fundamental rights was being negotiated, the then Labour Government secured an opt-out from its provisions by protocol 30 of the Lisbon treaty, and the Blair Government said that the UK would not be bound by the provisions of the charter. But despite the seemingly clear wording of protocol 30, the European Court has, in fact, in a supreme example of judicial activism flouted the will of the then Labour Government and has applied the provisions of the charter to British legislation in some very important areas, like data protection, for example. It is very important for democratic legitimacy to be respected, just as human rights must be respected, and therefore, when we leave the EU, there is no reason to believe there will be any dilution in the rights of the British people in any shape or form.

Well, this attack on judges and attack on their impartiality by virtue of the fact they're unelected fundamentally misses the point of the British constitution, actually. They're there to act impartially and they do so, and in this place we should resist any attempt to undermine that perception by allegations of failure to be impartial because they are unelected.

You mentioned protocol 30: it is not a question of the European Court of Justice applying that in the teeth of opposition from the UK. As I answered in the question earlier, the Supreme Court of the UK itself applied that charter in a case just before Christmas to disapply primary legislation as a consequence of a failure to comply with that, and he is absolutely Pollyannaish in his optimism about the level of protection that will be given to human rights if these provisions are not retained in UK law. The only point of the UK Government in changing those provisions is in fact to weaken them, and I think we should resist that at every single opportunity in this Chamber.