Equality (Amendment and Revocation) (EU Exit) Regulations 2018
Baroness Barran
That the Grand Committee do consider the Equality (Amendment and Revocation) (EU Exit) Regulations 2018
Baroness Barran (Con)
My Lords, I am honoured to present to the Committee the Equality (Amendment and Revocation) (EU Exit) Regulations 2018. This statutory instrument, in common with many others currently proceeding through this House and the other place, is necessary to enable the Government to ensure that the equalities statute book remains appropriate as we leave the European Union.
The regulations make purely technical changes to the Acts listed and ensure that our equalities legislation continues to operate effectively after exit day. They are wholly consistent with our commitment to upholding equalities protections across the United Kingdom as we leave the European Union, including those previously conferred by EU law, which have now been incorporated into domestic law through the European Union (Withdrawal) Act 2018. This commitment was most recently repeated by the Prime Minister in the other place on 21 January, when she guaranteed that,
“not only will we not erode protections for workers’ rights … but we will ensure this country leads the way”.—[Official Report, Commons, 21/1/19; col. 1258WS.]
A majority of the amendments are to the Equality Act 2010, an Act that constitutes one of the strongest pieces of equalities legislation in the world. That includes provisions to provide comprehensive protections from discrimination, harassment and victimisation on the grounds of nine protected characteristics. We are determined to ensure that the 2010 Act will continue to give certainty and continuity to, among others, employees, employers and service users, creating a stable environment in which the UK economy can grow and thrive. By passing the regulations, Parliament would ensure that those hard-won protections continue to operate after we have left the European Union. These regulations are purely concerned with ensuring that the legislation remains fit for purpose, by removing or replacing references relating to the European Union, its laws and institutions that will become redundant at the point of exit. This package of changes additionally includes the revocation of two pieces of peripheral, and in one case entirely moribund, retained direct EU law.
I am unsure how much detail the Committee may require about the proposed changes, many of which are merely the replacement or removal of one or two words. It would not be practical to address every change in this speech, but if noble Lords have questions about specific regulations, I will endeavour to address those in my closing remarks.
For the time being, it may assist the Committee if I set out the legislation being amended, together with an example for the purposes of illustration. The draft instrument amends: references to enforceable EU rights, references to EU law and the European Economic Area, and specific EU directives and harmonisation provisions. These provisions will become deficient after we leave the EU unless they are amended. While a majority of amendments are to the Equality Act 2010, the regulations also contain amendments to: the Civil Partnership Act 2004, the Gender Recognition Act 2004 and the Equality Act 2006—which establishes the Equality and Human Rights Commission, its governance arrangements and powers at its disposal.
The regulations also amend, in a minor way, the Equality Act 2010 (Amendment) Regulations 2012, which implement a 2011 ruling of the Court of Justice of the European Union that sex should not be used as a risk factor in determining individuals’ insurance premiums and benefits—the Test Achats ruling. A further regulation then replicates this change in the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2012. This is the only change to Northern Ireland legislation proposed in these regulations.
At this juncture it may be helpful to the Committee if I mention our approach on devolution when preparing this instrument. The amendments to the Civil Partnership Act and Gender Recognition Act relate to policy areas within the competency of the Scottish Parliament, and accordingly we have worked closely with the Scottish Government, and through them, the Scottish Parliament, to ensure there is agreement and to secure the necessary legislative consent. We have also consulted the Welsh Government on these regulations.
Importantly, we have also consulted the Equality and Human Rights Commission in the preparation of these regulations, to ensure it agrees with the legislative need for the changes and that it is content with the approach taken overall, and, in particular, in relation to the amendment that impacts the commission.
Lastly, I will briefly address the two pieces of retained direct EU legislation that we are proposing be revoked. One is Regulation 1922 of 2006, which established the structure and governance of the European Institute for Gender Equality—the research papers for that institute are available on the web. The regulations simply concern the structure of the organisation, which will not be of relevance to us following our exit. The other is Decision 771 of 2006, which established the European Year of Equal Opportunities for All of 2007. As the title suggests, this is outdated and no longer has any practical implication.
I draw noble Lords’ attention to the equalities transparency statement in the annexe to the Explanatory Memorandum. This is prepared in line with the commitment that the Government gave during the passage of the European Union (Withdrawal) Act that every EU exit-related statutory instrument would state whether and, if so, how it amends the Equality Acts of 2006 and 2010. Unlike the vast majority of such SIs, these regulations amend those Acts, and this fact and its effects are duly recorded in the statement.
In conclusion, I hope that noble Lords will recognise that the regulations in this statutory instrument are intended solely for the purpose of correcting deficient or redundant provisions in the legislation that I have outlined. Put simply, this legislation will no longer work exactly as Parliament intended once we have left the EU if this SI is not passed into law. Without making these small technical changes, we would risk leaving in place legislation that is no longer fit for purpose, at best, and which simply does not operate effectively, at worst. I beg to move.
Baroness Gale (Lab)
My Lords, I thank the Minister for the full explanation she has given as to why this SI is before us today and why it is necessary, and for outlining the parts of the regulations that have been revoked and the reasons for that. We support this technical statutory instrument, and I am pleased that this action is being taken now. No doubt the Minister is aware of the concern of the #FaceHerFuture campaign that the UK could fall behind on gender equality once we leave the EU. Will she say what measures the Government will take to ensure that we keep pace with the EU to maintain gender equality? We need a broad commitment from the Government to set out a positive post-Brexit agenda for the promotion of women’s and girls’ rights and gender equality; to ensure that the UK keeps pace with EU measures that maintain gender, race and LGBT equality; and to ensure that women’s services providers, including women’s refuges and other domestic abuse services, receive stable funding. That must remain on the agenda. The UK Shared Prosperity Fund must ensure adequate funding for women’s services.
The Explanatory Memorandum states,
“removing these references will not alter the present effect of EU law domestically in the field of equalities, which the Government is committed to retaining under the principle of ‘non-regression’”.
That is good news, and I hope that it will continue after we leave the EU. If the principle of non-regression is to be maintained after we leave the EU, will the Minister ensure that your Lordships’ House is provided with the information necessary to keep pace with the EU in all matters relating to equalities? Will the Government act on that information if it suits our legislation? I believe this is necessary in order that we do not fall behind the EU in equality for all. I look forward to the Minister’s response and I thank her for explaining this SI.
Lord Deben (Con)
Will my noble friend help me by kindly explaining what is meant by paragraph 3.10 in Part 2 of the Explanatory Memorandum, because I have read it carefully and I do not understand it?
I am concerned that although the Government have made all these promises about maintaining our standards, in the substantive legislation we have had in front of us, none of these things have been entrenched. I point in particular to the Trade Bill, where there is nothing to say that we will insist in future on having trading arrangements only with countries that maintain the same standards that we have. This is marginal in cost terms, but very important in principle. In the European Union, we have common views and our trading is done under common standards. That will not be true in future. Therefore, when we have substantive legislation, I am looking for the Government to entrench those standards so that they are taken into account in the trading negotiations. At the moment, they are not taken into account and Parliament is excluded from any discussion of the trading deals that will be done, whereas we are not excluded—at least, the European Parliament is not—when it comes to European trading deals.
If my noble friend cannot answer that question now, I hope she will explain why the Government insist on generalised statements but do not include such statements whenever they can be justiciably insisted on. I like it when the Government’s feet can be held to the fire, not when a particular Prime Minister has made a generalised promise. I have no doubt that my right honourable friend the Prime Minister has every intention of carrying through what she says, but she will not be Prime Minister for ever—I think that is an uncontroversial statement. I should like a commitment from the Government that in all the substantive legislation they bring forward, they will insist on having the same attitude towards the issues we have discussed today: civil partnership, gender recognition, sexual discrimination and the like.
That is particularly important when it comes to some parts of industry. I know that people say that it really does not matter very much. It certainly matters to our standards on agriculture. In some countries that we propose to have agreements with, there are no standards of this sort. They are able to do things we would not, which reduces their costs and enables them to compete unfairly.
I say one other thing to my noble friend. It is very difficult for those of us who have looked at these matters seriously not to be extremely angry that the Government continue to believe it is even possible to contemplate a no-deal exit. The damage done by that would be so serious that the Government make themselves look pretty ridiculous by not standing up and saying, “We will not allow this to happen and therefore we will not put through this legislation”. In any case, they cannot get it all through in time.
When my noble friend replies, she might be kind enough to avoid two phrases that she uses, neither of which help us. The first is, “not be of relevance to us”. The fact is that what the European Union decides in future, if we leave it, will be of relevance to us. It will not be of relevance in the sense that we will have to obey it, but the idea that we will not be affected by the decisions the European Union makes seems to me pretty barmy. This is one of the problems: we are putting ourselves in a position where we will be affected by decisions the European Union makes, even though we will have no say in those decisions, which will not directly be imposed on us. To use a phrase such as, “not be of relevance to us”, is to mistake the situation. What we mean is that, were we to leave the European Union, we have to amend our laws to exclude those bits that refer to the European Union. That is not the same as saying that it is not of relevance to us.
There is another little word that my noble friend used: merely—that this “merely” changes the situation to the new situation. This is not a “mere” change; it is another piece of legislation that makes Britain less able to deal with these matters, less influential and, frankly, less safe. As the noble Baroness, Lady Gale, perfectly properly said, we need real acceptance that if we remove ourselves from the European Union, we do not have the same guarantees of continuing with these standards. Most of us find unacceptable the idea that leaving the European Union is merely a matter of transference.
I hope my noble friend will accept that it is much easier if we just say, “This is an attempt to put our law into a position in which it would not totally collapse were we to leave with no deal”. Let us not use any of these words that diminish or reduce the seriousness of what we are doing—the barminess of the whole process and the fact that, if we were to leave the European Union with no deal, we would not be bothering much about gender recognition but about whether people could be fed and whether we could get things on to the supermarket shelves. This is the problem with our discussion: it is all in fairyland. It is all as if things would just go on and that somehow we could have these little changes at the edges.
This is not my noble friend’s fault. She has not started it and I have no idea what her views about it are—she would, of course, not be able to state them whatever they were. I want her to understand that this is an extremely painful process for any of us who have cared about Britain’s role in the world and in Europe, and Britain’s leadership. Therefore, we have to be very careful if we use the words “merely” or “not be of relevance to us”. I leave it to another time for my noble friend to explain precisely what paragraph 3.10 is, but if she can do that today I would be very pleased.
Baroness Hussein-Ece (LD)
My Lords, I thank the Minister for her introduction to this SI and for setting out the Government’s position. I should like to raise a few points. I speak as someone who has been involved in equalities issues for many decades. I recognise some of the hard-fought rights people in our country now have as a result of the EU and grassroots campaigns from women, people from different minority backgrounds and the LGBT+ community. These have all been hard-fought, as has been said. They were never given; they were fought for.
As the Equality and Human Rights Commission rightly says, the EU has played a pivotal role in ensuring that the underpinning of these rights has been embedded in our laws. For example, EU law has led to changes in UK law to protect equality and human rights, which, let us not forget, includes things such as human trafficking, including greater protections for victims and victims’ rights; disability rights, with huge changes due directly to EU laws, such as improved protections at work and Braille labelling for medicines; workplace discrimination, including protections on grounds of religion or belief, sexual orientation or age; and equal pay. These were all very hard-fought for.
There are concerns. I hear what the noble Baroness said, but these nevertheless have to be addressed. For example, in the event of no deal, which is what we are addressing with the SI, the Government will be looking for other international trade deals. The Government have always been looking to reduce the burden on business and business leaders, who, in some quarters, are always pushing for workers’ rights to be reduced. That is a fact. It might be part of new trade deals. These things have to be addressed and we have to have some answers and reassurances that we will not water down any of our hard-fought equality laws or rights.
For example, a briefing from Liberty states that there will be “serious consequences” for human rights after withdrawal. According to Liberty, the EU withdrawal Bill,
“will not retain the Charter of Fundamental Rights of the European Union”,
and will remove the ability,
“to bring legal claims based on the general principles of EU law”.
I am not a lawyer or an expert, but these things seem quite concerning.
Also, under the same fundamental principles, Liberty says that there are rights that do not have equivalents in our domestic law. For example, Article 3, on bioethics, provides,
“a right to physical and mental integrity, prohibiting eugenic practices, the use of the body and its parts for financial gain and the reproductive cloning of human beings”.
I did not know that until I read that. Another example is Article 14, which provides,
“a right to vocational and continuing training. Unlike its analogue under the ECHR, Article 14 is framed as a positive right—rather than a right not to be denied an education”.
It turns it round in that way. Another example is perhaps pertinent to Members of your Lordships’ House:
“Article 25 (rights of the elderly): recognises the right of older people to lead a life of dignity and independence and participate in social and cultural life. This right is unique and has no equivalent under the ECHR or any justiciable international treaty”.
Lord Deben
Is not the fundamental problem that because we have not taken that into our law, there is no justiciable ability of people to take the Government to court? When the Government say, “This is merely moving from European law into British law”, that is not true. It is moving those little bits in detail, but it is not moving the fundamental rights which are enshrined in these very important statutes and which we can refer to in the courts. Now we will not be able to take the Government to court on a full range of these matters, which is a serious diminution in our rights.
Baroness Hussein-Ece
The noble Lord advances my case. I was giving a few examples of some of the rights that currently protect different sections of society, but they will not necessarily be protected—and probably will not be—under what is proposed in the SI, which simply harmonises and takes out some of the laws that we currently enjoy and puts them into domestic law. If it is not already something that we recognise, it will not be there. Therefore we need some answers to these issues.
Article 10, which is important and which we discuss a lot in your Lordships’ House, is on freedom of thought, conscience and religion. It,
“includes a right to conscientious objection not recognised in domestic law”.
That is another example of what will not necessarily be harmonised or merely slipped into our domestic laws, because it does not already exist.
The question with the EU withdrawal Act as it stands is: is it not the case that we risk losing protections for sections of society that we have enjoyed for many decades now? An example is the loss of protection for women in work. The noble Baroness, Lady Gale, mentioned gender equality and how we must keep pace on that and not slip back. In addition, as I mentioned earlier, some business leaders see some of these rights as a burden. We need some reassurance from the Government of today, but they may not be the Government of tomorrow, a future Government, so reassurances in themselves will not be enough, because Governments come and go. We need something more fundamental enshrined in our law, which will provide the protections that we do not currently have.
Can the Minister address some of these issues? Another example is that European law has recognised the right of older people to live a dignified and independent life. There is no equivalent of that in the ECHR or a treaty, as I said. While I understand the sentiments the Minister expressed today, we need more than assurances; we need something more cast-iron, and even copper bottomed, which we will probably not get today. That will probably be for another day.
There are a lot of questions and concerns about how we keep pace with issues such as gender equality, race equality measures, LGBT rights and disability rights. Those laws are always evolving to keep pace. The EU has been a positive force for change, enabling us to keep pace and harmonise with those laws. If we are outside the EU, what will be the force for that? Will equality legislation and priorities simply slow down? They may not be a priority any more; other legislation will probably be seen as more of a priority. Quite simply, they could just be weakened and diluted and rights could be lost.
I ask the Minister to address the points that I have made and give more reassurance as to how these issues will be tackled. The UK has proudly played a pivotal role in bringing these protections for protected groups into EU law—we have been at the centre of that, if not the forefront—so how will we ensure that we do not fall behind?
Lord Smith of Finsbury (Non-Afl)
Before the noble Baroness sits down, I suggest a very clear example of exactly what she has been talking about. In 1997-98, the only reason why we in this country were able to change the rules on the age of consent for gay male sex was that two brave gay men took the case to the European Court, and the court gave a judgment that meant that not only were we able to change the law here but we had to change it. That is a very good example of exactly the impact, which the noble Baroness is talking about, that it has had over many years.
Baroness Hussein-Ece
I was just concluding but I am very grateful to the noble Lord, who I know has himself been pivotal in equality. In fact he was my MP at one time, and I remember that he was in the vanguard of changes in equality legislation.
I have many more examples, which I shall not itemise today, but we are looking for an example like that. There might be something in future involving the rights of people who need protecting. Where do we go for that if the Government of the day are not interested or do not see it as a priority? What will be put in place to ensure that future generations have the same protections that we have enjoyed?
Baroness Barran
My Lords, this has been a very constructive and heartfelt debate, and I thank noble Lords for their helpful points regarding both a recognition of the progress made in this country over many years in relation to equalities and the challenges that we face in future. I hope that noble Lords are reassured to some extent by my opening remarks about the nature of the proposed amendments in this specific instrument, as a number of the points raised are obviously broader than its scope. These changes are necessary to ensure a properly functioning statute book after EU exit while not in themselves amounting to substantive changes in policy.
I shall deal with a number of the points raised by noble Lords. The noble Baroness, Lady Gale, asked how we will keep pace with the EU to maintain gender equality specifically, while the noble Baroness, Lady Hussein-Ece, and my noble friend Lord Deben raised broader points in that regard. I reassure all noble Lords that we are committed to keeping all the protections in the Equality Act 2006 and the Equality Act 2010, which include gender equality but also go much broader.
My honourable friend the Minister said last week in the debate on this instrument in the other place that from the date we leave the EU, the UK will be free to set its own priorities, including those on gender equality and women’s rights. The UK has often been in the vanguard of developing new legislation and policies that support women in the workplace, tackling violence against women and girls, and ensuring that women are represented in political and public life. Our recent regulations, for example, requiring employers to publish their gender pay gap go further than anything required by the EU or any other member state. The other area where this country differs in a very positive way from the rest of the EU, is in relation to the public sector equality duty. I hope that noble Lords will reflect on the balance; there are definitely areas where this country is significantly ahead in terms of equality legislation.
Lord Deben
My Lords, all that is very true and I am proud of what this Government have done in both of the areas to which my noble friend refers, but could she explain why we have not transcribed into British law the requirements of the document to which the noble Baroness, Lady Hussein-Ece, referred? Those are the fundamental rights. We may be free to make changes, but humans in this country are no longer free to take the Government to court. We are losing a basic right. This is not a freedom at all.
Baroness Barran
If my noble friend will be patient, I will cover that point in a moment.
We will continue to engage with leading academics across Europe and internationally, bringing together the latest research on what works to deliver gender equality in the workplace through our Workplace and Gender Equality Research programme and our Gender & Behavioural Insights programme. Once we leave the EU, we will remain close to our European colleagues. We will continue to share good practice, collaborate with others and follow developments in Europe closely—a point which my noble friend Lord Deben questioned. The EHRC will remain part of Equinet, which is the European Network of Equality Bodies, and continue to be engaged with their work. Through bodies such as the Council of Europe, where a UK official now chairs an important gender equality body, the ILO and the UN, we will ensure that we are engaged with institutions and countries that are committed to achieving gender equality and the empowerment of all women and girls.
The noble Baroness, Lady Gale also asked about funding for specialist women’s services. She will know that this is a cause dear to my heart and I understand very well why she raises this point. The Government are absolutely committed to protecting victims of domestic abuse. Since 2014, MHCLG will have invested £55.5 million in services to support victims of domestic abuse, which includes funding refuges. The department is carrying out a review of how domestic abuse services are commissioned locally and funded across England. The review has been informed by an audit undertaken by Ipsos MORI for the provision of domestic abuse services across England which will enable us to understand what impact they are having and identify any gaps. MHCLG is also working with the domestic abuse sector and local authorities, drawing on their expertise and data, to develop sustainable delivery options for domestic abuse services in future. The noble Baroness will, I know, also welcome the introduction in the other place of the draft Domestic Abuse Bill, which I am sure will provide an opportunity to address some of these issues.
She also asked about the issues of non-regression and how this House will be kept updated. As I have already said, the Government are absolutely committed not to roll back workers’ rights when we leave the EU. This has been confirmed most recently by my right honourable friend the Prime Minister. I cannot ensure that your Lordships’ House will be updated formally with changes in EU equalities law. Obviously, the Equality and Human Rights Commission and the Women and Equalities Select Committee will continue their important work and produce their reports, which noble Lords will be interested to follow.
The noble Baroness asked for an assurance about the shared prosperity fund. We will be consulting on this and are concerned to ensure that disadvantaged groups are not left out of the fund. I am pleased to say that the Government Equalities Office is discussing gender issues, which are clearly very relevant here, with those in government leading on the fund.
My noble friend Lord Deben asked me to explain paragraph 3.2 of the Explanatory Memorandum—
Baroness Barran
I am sorry. Paragraph 3.10, which relates to Regulation 5(9)—I have to warn the noble Lord that this may not shed entire light on the matter—states:
“Regulation 5(9) amends Schedule 23 to the Equality Act 2010. This provision currently contains an exemption which allows a training provider to provide training to a person who is not ordinarily resident in the European Economic Area (EEA) where the training provider thinks that the training recipient does not intend to exercise the skills obtained in this country. The amendment recognises that the UK will not form part of the EEA after exit day and so ensures that this exception now applies to any country outside Great Britain”.
If the noble Lord would like me to write to him to clarify that any further, I would be delighted to do so.
The noble Lord also asked about future trading arrangements. I cannot speak for any future Government, but this Government have absolutely no intention of diluting workers’ rights, which was noted by my right honourable friend the Prime Minister very recently, as I mentioned. He also questioned whether we were trying to “diminish the debate”—I think those were the noble Lord’s words. I will try not to say the “M” word, but I am trying to focus only on the specifics of this statutory instrument. To repeat the words of my right honourable friend the Minister for Women and Equalities in the other place, this gives us a chance to choose our priorities going forward. It is really important that all noble Lords acknowledge the leadership we have shown. I have a table here that shows a number of areas, particularly in relation to goods and services, where this country is leading the way in rights. I already mentioned the public sector equality duty.
Turning to the questions of the noble Baroness about the Charter of Fundamental Rights and wider human rights issues, this statutory instrument does not have any bearing on the charter, which applies only to EU law or EU-derived law. It catalogues a range of EU rights and principles, the original sources of which are found elsewhere in EU law. The charter itself is not needed after EU exit because EU law, which is the source of these rights, will be copied on to our domestic statute book. I hope that the noble Baroness may take some reassurance from the fact that the Women and Equalities Committee acknowledged this in its 2016 inquiry, agreeing that,
“it would be difficult to apply the Charter so that it would function in a domestic context alone”.
In addition, the protections from the European Convention on Human Rights, which have been given further domestic effect by the Human Rights Act 1998, are unaffected by EU exit. The noble Baroness also raised a number of other issues, but if she will forgive me, I will just pick one, in relation to equal pay protections. These existed in Great Britain long before any EU rules were introduced and the European Union (Withdrawal) Act 2018 will retain Article 157 of the treaty of fundamental rights of the European Union in domestic law.