Monday 5th March 2018
(6 years, 8 months ago)
Lords ChamberEuropean Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Amendment Paper: HL Bill 79-IV(b) Manuscript amendment for Committee, supplementary to the fourth marshalled list (PDF, 79KB) - (5 Mar 2018)
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, I am grateful that the important issue of children’s rights has been raised. I thank noble Lords for these amendments, which seek to make changes relating to the United Nations Convention on the Rights of the Child and the charter of fundamental rights, specifically to incorporate them into domestic legislation via the Bill and to impose statutory duties on Ministers to consider the UNCRC when making regulations. Many of the noble Lords who have spoken to these amendments have a track record of tirelessly championing children’s rights over the years, and the issue is of utmost importance to them and to this Government. Protecting children’s rights is paramount, and I assure noble Lords that I have heard their concerns about how existing rights and protections for children, and our commitment to the UN Convention on the Rights of the Child, will continue as the UK exits the EU.
Amendments 37 and 38, in the names of the noble Baronesses, Lady Massey of Darwen and Lady Greengross, seek to provide that some or part of the charter of fundamental rights would remain part of domestic law following withdrawal from the EU. As a number of noble Lords have observed, we have already debated the wider issue of the charter at length and noble Lords will be pleased to hear that I will not go through the general arguments today, although I thank the noble and learned Lord, Lord Brown, for rehearsing some of them. I take the opportunity again to reassure the Committee that the Government remain fully committed to children’s rights and the UN Convention on the Rights of the Child. Our ability to support and safeguard children’s rights will not be affected by the UK’s withdrawal from the EU.
I have heard the concerns of the noble Baroness, Lady Massey, about the impact of Brexit on children’s rights and the need to ensure that their welfare, safety and best interests are not compromised as we leave the EU. The rights and best interests of children are already, and will remain, protected in England primarily through the Children Act 1989, which sets out a range of duties to safeguard and promote the welfare of children, including making the child’s welfare the paramount consideration for any court—I think the noble and learned Lord, Lord Brown, referred to that. Children’s rights and best interests are further protected through the Adoption and Children Act 2002, which among other things ensures that the child’s welfare is the paramount consideration in all decisions relating to adoption. In addition, other legislative and administrative measures are in place, including the Children Act 2004, which imposes general safeguarding duties in relation to children on various bodies.
Scotland, Wales and Northern Ireland have their own measures for the protection of children’s rights which fully comply with the UN Convention on the Rights of the Child. Additionally, the European Convention on Human Rights as a whole offers the protection of children’s rights, and this is implemented domestically by the Human Rights Act 1998.
Lord Wigley
The Minister referred to Wales, Scotland and Northern Ireland having devolved competence. Can he give an assurance that all the powers they currently have in that context will be maintained after Brexit?
Lord Callanan
I will come on to the noble Lord’s question shortly and answer him directly. None of this extensive framework is altered or in any way diminished by our exit from the EU and the non-retention of the charter. Amendments 68, 69 and 70, tabled by the noble Baronesses, Lady Meacher and Lady Lister, and the noble Earl, Lord Listowel, would incorporate the UN Convention on the Rights of the Child into domestic legislation and require all public authorities and Ministers of the Crown to have regard to it. Further, Amendments 97 and 158, tabled by the noble Baroness, Lady Meacher, seek to ensure that regulations made to remedy deficiencies in retained EU law are not contrary to the UNCRC. Again, I thank noble Lords for these considered amendments. Although tabled with great intention and faith, in reality they would not enhance the existing safeguards in place to preserve the rights of children in this country—measures that I have already outlined and which will remain in place after the UK’s withdrawal from the EU. I thank the noble Baroness, Lady Deech, for her comments and points on this matter.
It is also important to highlight that in addition to these measures, which are a combination of both legislation and commitments, the UK Government already have a commitment to Parliament to give due consideration to the UNCRC when making policy and legislation. In response to the noble Baroness, Lady Massey, I assure noble Lords that the Government are working closely with the Children’s Rights Alliance for England to ensure that children and young people’s views are heard and taken fully into account when developing policy and delivery in this area. We are hugely grateful to it for the great work it does to help preserve children’s rights and deliver a framework of actions on the UNCRC. These actions are designed to embed children’s rights across Whitehall and beyond, as we set out in a Written Ministerial Statement in October 2016. Those actions include developing and promoting training for civil servants to help them understand children’s rights and the UNCRC, and looking at how we can promote and embed good practice.
As I have set out, the UK already meets its commitments under the UNCRC through a mixture of legislative and policy initiatives, which effectively safeguard the rights of children in this country, negating the need directly to incorporate the UNCRC itself. That approach is in line with normal practice for implementing international treaties. By going over and above measures already in place, and which will of course remain in place after we leave the EU, the amendments would create new burdens on public bodies and individuals, when the UK’s existing laws and commitments already adequately safeguard the rights of children in this country.
Amendment 70, from the noble Baroness, Lady Lister, addresses continued co-operation on various security and law enforcement tools. Those discussions will be a matter for negotiations with the EU. The continued security of Europe is unconditionally guaranteed and is of paramount interest to us. The Government have been clear that the UK remains unconditionally committed to European security, and in the exit negotiations we will work to ensure that the UK and the EU continue to co-operate closely to safeguard our shared values and combat common threats. We recognise in that regard the value provided by Europol, the European arrest warrant, Eurojust and ECRIS. I hope that that provides appropriate assurances to my noble friend Lord Dundee and reassures other noble Lords of our wholehearted commitment to children’s rights and the UNCRC, showing that our ability to support and safeguard children’s rights will not be negatively affected by UK withdrawal from the EU.
I turn to Amendment 39, tabled by the noble Baroness, Lady Greengross, on the rights of the elderly. I entirely sympathise with the concerns raised today and I reassure the Committee that the Government are committed to the welfare of the elderly. I particularly thank the noble Lord, Lord Foulkes, for drawing my attention to his no doubt excellent report in the Council of Europe. I must profess that in my extensive reading material I omitted to go through that worthy document but, now that he has drawn my attention to it, I shall make it my priority to get hold of a copy and will reply to him in writing on it.
There are enforceable domestic safeguards for the rights of the elderly under the Human Rights Act and the Equality Act. Older people will continue to benefit from the existing strong protections against age discrimination, harassment and victimisation in the Equality Act 2010—for example, when accessing services when we leave the EU. Of course, the Government also make provision for the rights of the elderly in domestic legislation in a range of ways. To take just the most obvious example, domestic law provides for state pensions and the safety net of state pension credit, as well as disability benefits and other measures such as the provision of social care for those with eligible needs—subject of course to a financial assessment—free prescriptions where charges would otherwise apply, and travel concessions. Again, none of this is in any way diminished by our exit from the EU and the non-retention of the charter.
Article 25 of the charter is also a principle, which is different from a right. It cannot be relied upon directly by individuals in the way that rights can. Principles are a valued and important tool, and, in so far as the principles and rights underpinning the charter exist elsewhere in directly applicable EU law, or EU law which has been implemented in domestic law, that law will be preserved and converted by the Bill. Retaining Article 25 as a standalone right in this way is simply not necessary. If Article 25 was incorporated into domestic law, it would be unclear how it was supposed to apply and it would undermine the Bill’s core objective: to give certainty and continuity after we leave the EU.
I turn to the question asked by the noble Lord, Lord Wigley, on protecting children’s rights. The UNCRC does not impose a requirement on state parties to incorporate the UNCRC itself. It is focused on the implementation of rights without prescribing how state parties should achieve that. I reassure noble Lords that the UK meets its obligation under the UNCRC through a mix of legislative and policy initiatives, as opposed to the incorporation of the UNCRC itself.
With regard to Wales, the Rights of Children and Young Persons (Wales) Measure 2011 requires Ministers to have due regard to the convention when exercising their functions. The Children’s Rights Scheme 2014 sets out the arrangement Ministers have in place to ensure compliance. None of the rights exercised by Welsh Ministers will be affected by any of the provisions in the Bill.
My favourite hereditary oik, the noble Lord, Lord Russell of Liverpool, mentioned two articles. I certainly remember writing the article for “ConservativeHome” but have no recollection of writing an article for the Sun on the same day. I would be grateful if he would send me a copy of this for my delectation and interest, and I will respond to him when I have had a look at it.
I hope that my reassurances to noble Lords will enable them to withdraw or not move their amendments.
Baroness Massey of Darwen
My Lords, I thank the Minister for his reply. We have had an excellent debate on children’s rights and protection, with many articulate and forceful contributions. The noble Baroness, Lady Tyler, stressed that children are potentially the most affected by Brexit because they are young and will be subject to the forces that Brexit might bring. I am disappointed by the Minister’s response. Many of us have said tonight that we recognise that we have made great strides in defending children’s rights and proposing things which improve those rights and the protection and welfare of children. But I would like the Minister to recognise what was also said: namely, that our domestic laws do not protect children in all circumstances. Many noble Lords have given examples of this.
As my noble friend Lady Sherlock said, our laws do not incorporate all the treaties and we should be working towards more incorporation. The noble Baroness, Lady Meacher, thought this might be an “oversight”—I think that was the word she used. Whatever it is, we need to sort it out. We need to recognise that children’s rights and protection are not always incorporated into what we do. An example is youth justice, where 17 year-olds can be treated as adults rather than children. Children say that this is not right or sensible, and I agree.
The Government have made it clear that they are very keen on social mobility. It is important, but it will not happen unless children are encouraged to participate in their own futures. I am talking about empowerment as well as protection. Last November, I held a seminar in Portcullis House. One or two noble Lords were there as observers. We talked about child-friendly justice and child mental health. Almost half the participants were children and young people; others included academics, European politicians and NGOs. It was acknowledged by everyone that the contribution of young people was absolutely crucial to defining the needs of children and young people and responding to them. I recognise that the Minister says that they have talked to CRAE—for which I have the highest regard—on the rights of the child, but have the Government actually listened to what children have to say on this? I would like some evidence of that.
As I said, we have made progress on involving and protecting children, but we should be big enough to take criticism when it comes—and we are criticised. We are not rated highly at international level on how we deal with children. I gave the example of youth justice. We should not be complacent.
This is an important set of amendments, spoken to most forcefully by colleagues. I hope that the Minister will call a meeting of those present today and others to discuss how we can move forward on issues relating to Brexit and children. My questions and those of others have not been sufficiently answered. I still have reservations and I would like to meet the Minister to talk about them. I beg leave to withdraw the amendment.
Baroness Gale (Lab)
My Lords, we have had a really good debate on equality and women’s rights, and I am pleased to support the amendments in this group. Amendment 40, which inserts a new clause, was moved so ably by my noble friend Lady Lister, who explained in detail why it would be very useful to have it in the Bill. It is a very good amendment, which would require the Minister to report to Parliament whenever there are new or amended EU laws in the area of family-friendly employment rights, gender equality, and work/life balance for parents and carers, which would have amended provisions in domestic legislation if the UK had remained a member of the EU, and the Minister would have to consider whether or not to incorporate these provisions into domestic law.
There could be a danger that the UK will fall behind the EU on gender equality and women’s rights when we do not automatically have to follow EU laws. The amendment means that Parliament will at least be informed of new EU laws and that consideration will be given to whether or not to incorporate them in UK law. This is not anything new, really. We do look at other countries and see what they are doing. If one thinks of the devolved nations, the UK Government have learned from the example of the Welsh Assembly, where we had a children’s commissioner—the first one in the UK—and then the UK Parliament decided that there would be one for England. There are other examples I could go into where we have learned from other countries. There is no problem in looking to see what works in one area or one country and then incorporating it into our laws. That is the importance of the proposed new clause.
Amendments 89A, 129A and 157A, spoken to by my noble friend Lady Drake, would ensure that regulations will not weaken our rights relating to maternity or paternity, or adoptive parental rights, or the rights of pregnant or breastfeeding women. We know that even today regarding our gender equality rights, which have been hard fought for, there is ample evidence that employers do not always adhere to the law. In recent weeks we have heard of employers who seem to disregard the laws around maternity and pregnancy. The Equality and Human Rights Commission, as my noble friend Lady Drake mentioned, said recently that many businesses were “decades behind the law” and,
“living in the dark ages”.
This followed a survey which showed that a third of those working for private companies thought it was reasonable to ask women during the recruitment process about their plans to have children in the future, whether they were pregnant and whether they had small children. This type of questioning is against the law and one wonders why it still goes on.
In December, the Prime Minister failed to rule out scrapping the working time directive, the agency workers directive and the pregnant workers directive, even though she was asked several times to give that assurance. The pregnant workers directive is of great value to women and gives much-needed protection in the workplace. So we need to ensure that delegated powers cannot be used to weaken maternity, paternity, adoption or parental rights. One can see why, after that long fight for equality, it has still has to go on. We want to make progress all the time but there are grave concerns about the Bill.
I hope that the Minister will be able to give guarantees tonight in relation to these amendments. Equality rights do not just stand still; they have to progress all the time. That is why it is so important that we look to see what the EU is doing and then see whether it is something that we would want to incorporate into our laws. We really need that reassurance from the Government that the equal rights we have fought for, hard and over many years, will not be watered down at all. These are sensible amendments that would continue to ensure the protection of women in the workplace, as well as ensuring that women’s equality rights do not fall behind those of future EU laws. I hope that the Minister can give assurances that he will look seriously at these amendments, because they are good and sensible ones.
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
My Lords, I am grateful to the noble Baronesses, Lady Lister, Lady Altmann, Lady Greengross, Lady Burt, Lady Drake and Lady Gale for their contributions, and for bringing this debate alive tonight. It is right and proper that that debate should be here.
I would like to make a few points, which are necessary this evening. First, on the day after Brexit, the rights which we have worked so hard while within the EU to create will be brought back. We have been a partner in the framing of those rules and we will return them to the United Kingdom. There will be no dilution. There will be no weakening or regression. These rules will come back and they will stand here. I emphasise that as members of the EU, we have never been bound by those rules as anything more than a foundation upon which we can build greater adherence to those rights. It is important to stress that.
The EU pregnant workers directive requires 14 weeks of paid maternity leave. In the UK we offer 52 weeks, 39 of which are statutory maternity pay. Our maternity entitlements are nearly three times greater than the minimum within the EU. We have given fathers and partners statutory rights to paternity leave and pay—an entitlement which the EU is only now starting to consider in its proposed work-life balance directive. In light of the comments of the noble Baroness, Lady Lister, she will be aware that the work-life balance directive is still only at the Commission proposal stage. We have not yet heard, or had a report, from the European Parliament or begun the necessary dialogue to determine what exactly will form the final elements of that directive. It is important to stress that the process of negotiation is right and proper. We have always taken part in that and will continue to do so. Exactly when it will reach the stage of clarity remains yet to be determined.
We have given the parents of all children up to the age of 18 a right to take up to 18 weeks of unpaid parental leave, while the parental leave directive requires only four months and applies only to the parents of children up to the age of eight. Again, we have sought to go further. It is important to stress that when we look at our ability to deliver against these EU expectations, we have never seen them as limiting us. We should be able to go beyond them.
Importantly again, it is not simply enough to enact these proposals; they must also be adequately enforced. That is why looking at the EU’s enforcement scoreboard is particularly important. At that point we begin to understand how successful it has been not just in transferring the law into the statute book but in making the law a reality because it is by those instruments and the reality of that law becoming functional that we adhere, advance and create functional rights.
Baroness Drake
The Minister’s reference to enforcement is very important. Is he giving an assurance that there are no government plans to cap compensation in discrimination cases when we leave the EU?
Lord Duncan of Springbank
The noble Baroness will recognise that that is part of a discussion for another time. We have already touched on it on more than one occasion. If I may, I will focus primarily on the amendments before us today.
It is important that we recognise that the rights we have cannot be undone. That must be the fundamental guidance. For those who ask whether I can give a categorical assurance that there shall be no erosion of the working time directive, the answer is yes, I can give that assurance. We will not be eroding these rules as they come back or after they come back. It is critical that these rules become and remain functional as we begin to develop our own rulebook. It is right that we should be cognisant of the advances in the evolution of rights whether it be in the EU or elsewhere. We have heard this evening about a number of these rights which we have seen emanating from the UN. We should not be limited in that regard. Time and again we have found ourselves in the vanguard of particular rights. As we consider this suite of amendments, I do not think we should lose sight of the fact that in more than one area on more than one occasion we have pushed rights far further forward than had been the case of the median rights within the EU as a whole.
Lord Wallace of Saltaire (LD)
The Minister just made an extremely significant statement. He will appreciate that part of the problem many of us have with the Bill is how far we trust the Government to have the very extensive delegated powers which are granted by the Bill and the chatter one hears, including from Ministers, about a desire to loosen EU regulations, in particular to loosen EU labour regulations. If the statement he has just made represents the Government’s considered view, that puts a number of minds at rest, although it may upset a number of people within his own party.
Lord Duncan of Springbank
I hope I can put the noble Lord’s mind at rest.
It is important that we recognise how these functional rights are developed and ongoing. The day after Brexit, our rulebook will be safe. The rights which we have will be incorporated and we will build on them as a foundation. They are not a ceiling. It is right and proper that both this Chamber and the other place are instrumental in taking forward the enhancement of these rights. We have to recognise that over the past 30 years our understanding of what is a necessary family right has entirely evolved. As the vice-chair of the LGBTI group in the European Parliament, I recognised how far we could push things within the European Parliament, but I was very clear about how far we could not push them within the European Parliament because of the inability of certain member states to move forward with us. In that regard, in terms of equalities, on not one occasion have we ranked lower than third in the whole of the EU—indeed, in the whole of the continent of Europe. We have pushed forward those rights far faster, deeper and more surely than many of the other member states, so we should not lightly shake them off. We will remain what we have been, I hope, all the way through: a deliverer of these rights, not just on paper, because that is not a functional right, but in functioning and working in the workplace and elsewhere. It is absolutely right that we do so.
In response to a number of the questions raised, I am conscious that there is unease and a certain regard that the Government today will take the first opportunity to cast these rights aside, to scrape the barnacles off the boat to allow the ship to move faster. I assure the Committee that they are integral parts of the engine of the ship and we shall not be discarding them. That is how important they shall remain.
Baroness Ludford (LD)
If that is the case, and we are all very impressed by this unexpected and thorough assurance from the Minister on behalf of the Government, why can he not accept some amendments in this area and some others to put that in the Bill?
Lord Duncan of Springbank
The noble Baroness makes an interesting point as to why people have not been able to hear these points, but I am iterating what the Prime Minister, and a number of other Ministers in the Government, have said as regards this, and am pleased if I have been able to cut through some of the hubbub that has surrounded it. We are and remain a Government committed to ensuring that on day one after Brexit there is no diminution whatever in the rights which are and have been enjoyed through our membership of the EU. It is important to stress that. I hope I have been able to give noble Lords some reassurances this evening and some confidence that they will be able to set aside these amendments on this occasion.
Baroness Lister of Burtersett
My Lords, I am grateful to noble Lords who have spoken from across the Committee in support of this amendment—with one exception of course, the noble Lord, Lord True. I cannot help but point out that there is a certain irony that the longest speech came from the noble Lord who complained that we were wasting time. He took, I think, nearly a fifth of the non-ministerial time in order to tell us we were wasting time.
Lord Goldsmith
I am grateful for the question, because it enables me to clarify that point. There are two sorts of principles. I was talking in answer to the noble Lord’s question last week about the principles which are contained in the charter itself. The charter says that it is a charter of rights and principles, and the principles there—it is not that easy to identify which are principles and which are not—are not actionable in themselves. They may become actionable, because as they are aspirational tools, they are then implemented into law and are actionable at that stage. The principles we are talking about here are different. These are the general principles of EU law, which are, for example, the principle of legal certainty, the principle of proportionality, and the principle of non-discrimination. These are different in that sense; they are general rather than specific principles, and they are actionable at the moment. That is why the Walker case I mentioned gives rise to a remedy, as did the other cases where the Supreme Court struck down tribunal fees as being disproportionately high for particular categories of workers.
That is why we believe it is important to keep this. It is one element of the architecture to retain rights. I remind noble Lords that the Prime Minister made it clear that the intention was that rights would continue the same the day after exit as the day before. To remove general principles in this way, and the ability to rely upon them, will fail to keep that promise. This amendment also—it has been referred to already—specifically proposes that the general principles of EU law should include those which are contained in Article 191 of the Treaty on the Functioning of the European Union. Those are environmental principles of huge importance: the precautionary principle, the principle of polluter pays and the principle for preventive action. Those principles and the others I referred to need to continue to operate to keep in place the rights that people enjoy at the moment.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I thank noble Lords for their brevity.
Amendment 40ZA, in the name of the noble Baroness, Lady Bowles, seeks to ensure that challenges to validity could continue on general principles of EU law grounds. I will address concerns raised on general principles in more detail later. First, Schedule 1 generally ends the ability to bring challenges on validity grounds to what will become retained EU law after we leave the EU. We recognise, however, that in some circumstances, individuals and businesses may be individually affected by an EU instrument. For example, a decision of an EU institution or body may be addressed directly to an individual or business. After exit, they would continue to be able to challenge such decisions—in so far as they apply in the EU—before the CJEU, and to have them annulled. Of course, the converted form of the decision would however remain in force within the UK as retained EU law.
The noble Lord, Lord Pannick, asked whether paragraph 1 of Schedule 1 would, after exit day, prevent a challenge to a provision of retained EU law by reference to common-law principles. I understand that the answer is no, it would not, and it is not intended to do so. I hope that that meets the position that he raised with me a moment ago.
Domestic courts currently have no jurisdiction to annul an EU measure or declare it invalid, and we do not believe it would be right to hand them a new jurisdiction which asks them effectively to assume the role of the CJEU in this context. This amendment would effectively ask our courts to consider whether the EU acted incompatibly with the general principles when it made an EU instrument. Generally speaking, this is a function that we do not consider it appropriate to confer on domestic courts.
Therefore, although I appreciate the points raised by the noble Baroness, the amendment would undermine the Government’s stated policy of a clear exclusion of both validity challenges and general principle challenges provided for within Schedule 1. However, we recognise that there might be some limited circumstances in which it would be sensible to maintain the ability to challenge retained EU law on validity grounds. The Bill therefore contains a power set out in paragraph 1(2)(b) of Schedule 1, to which the noble Baroness alluded, which would enable the Minister to make regulations providing for a right of challenge in domestic law to the validity of retained EU law in specified circumstances.
Sub-paragraph (3) sets out that those regulations may provide that a challenge which would previously have proceeded against an EU institution may, after exit, proceed against a UK public authority, because of course there would be no EU institution against which it could be directed. I seek to reassure the noble Baroness that the word “may” is there as a precautionary term lest, in the context of trying to make such a regulatory power, it be perceived that there is no easily identifiable body against which the matter can be directed. However, the intent is that it should be possible to proceed against a public body in those circumstances.
Lord Beith (LD)
Can the noble and learned Lord envisage the circumstances in which such regulations would be made? Will Ministers have to decide between now and exit day a category of matters for which such regulation is to be provided, or are we to await a case coming up which ought to have been the subject of regulations which are then made? That surely cannot be possible.
Lord Keen of Elie
With respect, it is a precautionary power and it is intended that, where the circumstances arise, the Minister will address himself to those circumstances and contemplate the making of appropriate regulations.
Lord Pannick
Perhaps I may suggest to the Minister a circumstance in which this might arise. The day after exit day the Court of Justice gives a judgment saying that a provision of EU law is invalid. Nevertheless, that provision will be part of retained EU law—it will be part of our law even though it has been abolished in the EU. That might be a circumstance in which the Minister wishes to act.
Lord Keen of Elie
I fully acknowledge that that is most certainly a circumstance that could arise. Of course, one might address that circumstance by Parliament legislating to reflect the outcome of that post-Brexit decision. However, I fully acknowledge that, depending on the way in which one constructs the departure on exit day, one might find that what one has retained as EU law ceases to be EU law almost immediately after one has left the EU. I believe that that has been acknowledged on a number of occasions. Indeed, it could lead to the development of two parallel jurisprudences—one for retained EU law and one for EU law. That is an inevitable outcome of our decision to leave the EU but to retain in our domestic law that which was EU law at the point of our departure. I fully acknowledge that, but it might also be a circumstance in which potentially one would seek to exercise the exceptional regulatory power that is referred to.
Reference was made to Amendments 41 and 42, tabled by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Foulkes, which seek to retain indefinitely in domestic law rights of challenge based on the general principles of EU law. If agreed to, these amendments would empower domestic courts to quash administrative actions or secondary legislation or, indeed, even go as far as disapplying an Act of Parliament on the ground that it breaches one or more of the retained general principles of EU law—that could take place long after we have left the EU. That is why we have to have a point in time at which we have certainty as to the scope for such challenges, and that is reflected in the schedule.
As the noble and learned Lord, Lord Goldsmith, acknowledged, Amendment 41 would go even further. It seeks to set out an ostensibly broader definition of which general principles are to be retained under the Bill. In that context, he alluded to Article 191 of the TFEU, which deals with environmental issues. I take issue with him as to whether the polluter pays principle and the precautionary principle are both now accepted as general principles of EU law. I would suggest that there is considerable doubt as to whether the former, in particular, constitutes what is recognised in EU law as a general principle, so I have some difficulty with that amendment.
I come now to Amendment 63, also tabled by the noble Baroness, Lady Bowles. It is, I apprehend, intended to retain this right of challenge but solely for the principle of proportionality, as she indicated, and specifically including where retained EU law is to be treated as primary legislation. It would also appear to permit the possibility of a challenge on the basis of invalidity of EU law, as well as judicial review of such legislation. It is our position that the general principles of EU law, such as proportionality, non-retroactivity and fundamental rights, will be kept in our domestic law, but in order to assist in interpreting retained EU law and not to give rise to additional stand-alone rights. Whereas some general principles are now set out expressly in EU treaties, the general principles were those that were first recognised by the European Court of Justice. They are essentially judge-made and determined as principles on the basis of case law. It is those principles that we are dealing with.
I come back for a moment to Amendment 41, which goes beyond just the issue of proportionality. It would undermine the approach that we are seeking to take if we were to pursue it. In particular the inclusion of Article 191 in the amendment risks going further than the existing principles that are, as I say, set out in EU law and consequently in UK law today.
Lord Goldsmith
Leaving aside Article 191—we can argue about that and there is a decision that appears to demonstrate the point: the case of Artegodan, where the court appeared to be willing to extrapolate from the precautionary principle a general principle of EU law—does the Minister accept that, so far as the other general principles of EU law are concerned, to exclude them from the ability to found a cause of action and not just be an interpretative tool would be a diminution of the rights that people currently have and would include a diminution of many of the rights that the Government are saying are already protected under English law?
Lord Keen of Elie
The noble Baroness is confusing two distinct issues. The Bill is about the retention in domestic law of EU retained law at the point of Brexit. The Prime Minister was addressing our future relationship with the other 27 members of the EU in the context of our seeking to align in some areas and not align in others. This will be the subject of negotiation which is about to commence and will apply in agreeing a transitional period, and then our post-transitional period relationship with the other EU 27. They are two distinct issues.
On the noble and learned Lord’s observation about the general principles, these are retained as an interpretive tool. It may impact upon the matter of remedies but not on the issue of rights. One has to bear in mind that distinction.
Reference was made by the noble and learned Lord, Lord Wallace, to the case of Benkharbouche, which was a classic example of where the issue of rights had to be distinguished from the issue of remedies. There were rights arising under Article 6 of the convention but there was an also an issue as to whether or not certain principles arising by reference to the charter were also in play. I believe it was Article 46 of the charter that was referred to by Lord Sumption, who delivered the opinion of the court. The point was that while the rights could be identified by reference to the convention or the charter, the particular remedy there arose by reference to the charter. I acknowledge that that is the case.
Lord Wallace of Tankerness
Is that not part of the point? An expectation has been built up by what has been said—that, on Brexit date plus one, people will be in the same position. The noble and learned Lord is admitting that they will not be in the same position because they may have rights but they will no longer necessarily have remedies.
Lord Keen of Elie
They will have rights but they may not have the same remedy, but that is quite distinct. We are talking about maintaining rights at the point when we leave.
Lord Goldsmith (Lab)
Does the noble and learned Lord accept that Mr Walker would not have the same rights? Those are rights purely based upon EU general principles and nothing else. Does he not accept that in that case, at least, the rights would not be there?
Lord Keen of Elie
No, I do not accept that. I certainly do not accept that that is the position under reference to the Walker case. However, I am content to come back to the noble and learned Lord on that question on the Walker case but I do not accept that it falls in the way he indicates.
Perhaps I can make some progress. We remain of the view that after we cease to be a member of the EU there is a real risk of allowing general principle challenges to continue indefinitely, which is what these amendments would allow. Simply put, this would not be in keeping with our undertaking—our promise—to return sovereignty to this Parliament.
Of course we are aware of the concerns that have been raised, particularly about the impact on those whose cause of action precedes exit but who are unable, for whatever reason, to issue proceedings before some change takes effect. That is why we brought forward amendments on Report in the other place to provide reassurance that where a breach of the general principles occurred or gave rise to a potential claim before exit day—that is the important point—individuals and businesses will still have the opportunity to make certain claims based on the breach of the general principles of EU law for a period of three months after exit date. That period of three months after exit date is taken to mirror the period normally allowed in the context of applications for judicial review. That strikes a balance between ensuring that, on the one hand, individuals and businesses will still have the opportunity to bring these challenges and, on the other hand, delivering the result of the referendum and maintaining our parliamentary sovereignty.
While we believe that the compromises we have already made on the general principles of EU law have improved the Bill, the Government are looking again at these issues to see whether this part of the Bill can be improved in keeping with some of the concerns that have been expressed. That is because we understand the complexities of the issues that arise in the context of Schedule 1 and we are looking at those at present.
With that, I hope that the noble Baroness will see fit to withdraw her amendment.
Lord Keen of Elie
As the noble and learned Lord rises to his feet I am reminded of his reference to whether paragraph 3 includes Acts of the Scottish Parliament passed before Brexit day and not within competence. If they are not within competence, they are not law.
Lord Wallace of Tankerness
Perhaps I may explore that with the noble and learned Lord. The point I was making was that if the Acts were passed before Brexit day and they were challenged on the basis that the alleged incompetence was that they were not consistent with the general principles of EU law, would that challenge fail on Brexit day plus one, because it would mean that the court could no longer determine it?
Lord Keen of Elie
In the event that an Act of the Scottish Parliament was enacted beyond the competence of the Parliament, it would not and would never have been law. That is the position pursuant to Sections 28 and 29 of the Scotland Act 1998. I hope that that clarifies the point, but if I have misunderstood the noble and learned Lord—
Lord Keen of Elie
I am quite prepared to discuss the point with the noble and learned Lord because it may be that we will look more closely at those provisions in the Scotland Act in the very near future.
Baroness Bowles of Berkhamsted
I thank the noble and learned Lord for his response and all noble and noble and learned Lords who have spoken in this debate. I think that it has been confirmed that it is every bit as bad as I thought it was, and in fact I am not even sure that it is not worse. We now seem to have some kind of parallel jurisprudence which appears not to be actionable either under general principles or under common law, so we have created a kind of lacuna that cannot be approached. I also reject the fact that we would not be going on indefinitely applying general principles because the whole point is that we have the law as it is in the snapshot until such time as we change it. While I understand that one would not necessarily want to go in for a sudden wholesale redrafting of things, as amendments are necessary—especially if we avail ourselves of some of the mechanisms we have talked about where an Act of Parliament is going to be needed either because it is primary legislation or because we have put that on as a safeguard—these things are going to be revised and updated. I am still concerned and it is something that along with others we might want to return to on Report. However, for now, with the leave of the Committee I shall withdraw the amendment.
Lord Keen of Elie
My Lords, I am obliged. Reference has been made to the Francovich principle. I am not sure there is such a principle, although there is the issue of Francovich damages, which arises from the case that was referred to in 1991. In order to put that into context, since 1991, and in the 20 years following, there have been 22—possibly up to 25—claims for Francovich damages in the UK courts. This is not some wide-ranging citizen or business right for the recovery of damages. There have been very few actual Francovich damages claims. I see the noble and learned Lord, Lord Goldsmith, shaking his head, but I invite him to study the case law.
Lord Goldsmith
I have no doubt about what the noble and learned Lord says. So why are they so worried about keeping it?
Lord Keen of Elie
I am just about to come on to that. I am obliged to the noble and learned Lord for his patience in that respect, and will endeavour to deal with matters as swiftly as I can, given the hour. The noble Lord, Lord Carlile, very correctly, pointed out the criteria that apply in determining whether or not there is a claim for Francovich damages: first, that the relevant provision of European Union law was intended to confer rights; secondly, that there has been a serious failure to implement European Union law; and thirdly, that there is a direct causal link between that failure and the loss complained of. I would not go so far as to suggest that Francovich damages are in some sense more generous than those available otherwise under the common law in this country, particularly those available in the context of judicial review. I have to point out to the noble Lord, Lord Davies, that damages are potentially available in a claim for judicial review.
Lord Davies of Stamford
The noble Lord, Lord Pannick, dealt with that point. In practice, damages are not usually available under judicial review. The general view of the public is that there is a very small chance of getting damages that way. That is the difference between that and Francovich, and it is very important.
Lord Keen of Elie
With respect, it is not. I have to say to the noble Lord that Francovich damages are a rare remedy, as I have already indicated. Damages in the context of judicial review are not so uncommon as the noble Lord was suggesting. They are available as a remedy, albeit in limited circumstances.
Lord Keen of Elie
Perhaps I can continue just for a moment. I would begin by looking at the Bill against that background. Paragraph 4 of Schedule 1 is perfectly clear in saying the right to Francovich damages is removed, because of course it is related to a breach of European Union law, and it would not be appropriate to continue—in accordance with Amendment 43—after we have left the European Union. The Bill is quite clear in saying that there is,
“no right in domestic law on or after exit day to damages in accordance with the rule in Francovich”.
To that extent, it does deal with the issue raised in the context of Section 16 of the Interpretation Act 1978.
Lord Carlile of Berriew
I take it from what the noble and learned Lord is saying that he accepts that there are existing rights to recover damages available in the British courts which the Government wish to remove. That is a breach of promise, is it not?
Lord Keen of Elie
I wonder whether the noble Lord could exercise a small degree of patience while I just complete what I have to say on this topic. But we can take as long as it takes. As I was saying, in terms of paragraph 4 of Schedule 1, the right in domestic law to damages in accordance with the rule in Francovich is removed as at exit date. There is of course a proviso in paragraph 27 of Schedule 8 in respect of claims for Francovich damages which have already been raised prior to exit date—the point that the noble and learned Lord, Lord Goldsmith, made. The potential lacuna is this: there may be accrued rights as at exit date where no claim has been made. We recognise that and it was noted in the other place. We are open to addressing that issue in order to ensure that those accrued rights are not removed by the application of paragraph 4 of Schedule 1. That is something that we are prepared to look at, as I have indicated, because we are aware of the criticism that has been made about the potential removal of rights that have already accrued as at the exit date.
Lord Goldsmith
Do I take it from that that the Minister will be bringing forward an amendment to correct this?
Lord Keen of Elie
I am obliged to the noble and learned Lord. As I say, we are addressing that issue, which we recognise, and therefore in time for Report we will be determining what our position is. I cannot go further at this stage and I am not going to commit to an amendment, but I make it perfectly clear that we recognise that there is a potential lacuna arising from the fact that while, where a claim has been made before Brexit date it is continued, where the claim has accrued but no claim has actually been made it would be lost by this process. We recognise that there is room for criticism of the legislation on that basis; I am absolutely clear about that.
In these circumstances, I recognise the force of the amendment proposed by the noble and learned Lord, Lord Goldsmith, and that proposed by the noble Lord, Lord Carlile, in order to address that issue. I would take issue with the scope of the amendment proposed by the noble Lord, Lord Davies, which goes well beyond that and would maintain some sort of claim for Francovich damages in a context quite unrelated to our departure from the EU. I underline that this would not be appropriate.
I mentioned earlier the limited number of cases in which Francovich damages have arisen. That in itself suggests that it might be a proportionate response to the amendments made by the noble and learned Lord and the noble Lord, Lord Carlile, to allow for claims that have accrued because they are potentially very few indeed. I recognise that entirely. I am not committing to an amendment at this stage but I will make the position clear by the time we reach Report. In the circumstances, I invite the noble Lord to withdraw his amendment.
Lord Pannick
Before the Minister sits down and we all go to bed, I am very puzzled by his suggestion that there is currently a right to damages in judicial review such that Francovich damages do not add anything. In what circumstances is the Minister suggesting there is a right to damages in judicial review, other than in the very rare cases where you can prove misfeasance in public office?
Lord Keen of Elie
That is one example of where a claim for damages would arise in the context of a judicial review. There are distinct circumstances in which Francovich damages will arise. The noble Lord will himself recognise that the circumstances in which you can actually establish a basis of claim for Francovich damages are even rarer than those instances in which you can establish one in domestic judicial review.
Lord Pannick
I do not accept that. It is quite clear, I suggest, that damages under Francovich are provided in circumstances where you would not otherwise get damages because you cannot prove misfeasance but you can prove that the breach is sufficiently serious and that the law was intended to confer a right to damages. That is why I suggest to the Minister that paragraph 4 is taking away something of value.
Lord Keen of Elie
In response to the noble Lord’s observations, we are dealing in the context of Francovich with the court having to find that there has been a serious failure with regard to an EU obligation, and I suggest that that is not very far from the test of misfeasance in the context of judicial review.
Lord Davies of Stamford
My Lords, I am grateful to everybody who has taken part in this interesting debate. I think that anybody listening in from outside will be impressed that we are working hard on a very serious matter at quarter to one in the morning.