European Union (Withdrawal) Bill
Baroness D'Souza Excerpts(6 years, 3 months ago)
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Baroness D'Souza (CB)
My Lords, clearly there are many hundreds of occasions, set out in the Bill, when delegated legislation is, and should be, acceptable—for example, to remove rights that become redundant after Brexit, such as the right to participate in European elections. Furthermore, the Government face a herculean task in transposing EU law into UK domestic law, and the use of delegated legislation serves the interests of expediency and is not necessarily malign in intent.
That said, the mantra that accompanies the Bill is that it is an enabling mechanism, not a decision-making one. The purpose, we are told, is practical and not policy-oriented. But here I have to disagree with my noble and learned friend Lord Brown of Eaton-under-Heywood and agree rather more closely with the noble Baroness, Lady Lister of Burtersett, in the expression of her concerns. We are told that the Government have excluded the European Charter of Fundamental Rights from the Bill. This exclusion conflicts with the general rule of maintaining the status quo and represents a weakening of human rights protection for UK citizens. Furthermore, it represents a major policy change, something the Government explicitly make clear they do not wish to do by avowing that,
“the same rules and laws will apply after exit as on the day before”.
What does the charter add to the armoury of human rights protection enjoyed currently by UK citizens? The charter is at present part of our domestic law but will not be so after Brexit. It gives UK courts the right to strike down any legislation that infringes charter rights as set out in the general principles of EU law. As such, it is an important tool, affecting rights to education, bioethics, academic freedom, conscientious objection, a fair hearing and an effective remedy, among other rights. The charter also covers digital and asylum rights and pension rights for LGBT people, and it safeguards maternity rights.
The charter has been used in recent years to challenge indiscriminate bulk collection of personal data, and/or by those employed by foreign London-based embassies to ensure fair job treatment and to protect privacy from government intrusion. Crucially, it has been used to ensure that the Government cannot make decisions balancing individual rights and national security in secret. The key feature of the Bill is that it removes the right of challenge in the UK courts for breach of the general principles of EU law. There is no counterpart legislation in UK law to deal with these challenges. So while we are busy transposing EU law into British law, we will wholly bypass the European Charter of Fundamental Rights and it is therefore legitimate to question why.
The Government argue that there is no need for the charter since “all” the rights contained within it are already covered by other legislation including, for example, the UK commitment to the European Convention on Human Rights and the Human Rights Act 1998. However, I remind noble Lords that the Government have also, at other times, expressed the contrary view that the charter adds an extra layer of rights domestically, which is perhaps something they now consider undesirable. While it is the case that similar charter rights are covered in the ECHR and domestic law, there are, as already mentioned, very important omissions.
The Government assert that while every other EU law will be retained, they single out the charter for exclusion, and we are therefore justified in asking them to demonstrate how, where and when there will be legislation to protect the full panoply of rights. It is interesting to note that the opt-out of the charter in the Bill is in marked contrast to the specific safeguards granted, for example, for the use of delegated legislation in relation to taxation and to amendments to the Human Rights Act.
On Report in the other place, the Secretary of State said,
“it is true that after exit it will not be possible for an individual to bring a free-standing claim or for the courts to quash an administrative action or disapply legislation on the grounds that it breaks one or more of the general principles of European law”.—[Official Report, Commons, 11/9/17; col. 585.]
It is difficult not to see this as anything but a pretty major policy change. If the Government wish to revise their human rights protection policies, which they have every right to do, perhaps the withdrawal Bill is not the best place to do it. Such major policy changes should come before both Houses of Parliament in the normal way and be open to detailed scrutiny and amendment. This is a matter of great importance and not one to be roughly pushed aside in the context of the withdrawal Bill.
Finally, the law has to be clear. People must know their rights and, most especially, when and how they might be threatened and what redress is open to them. As was said in the other place:
“The whole point of the charter was to gather all the rights and protections that existed … in other places and put them into one document”.—[Official Report, Commons, 17/1/18; col. 1006.]
Now they are to be once again scattered, weakened and made less accessible. We should retain the charter within the Bill, together with a commitment that Government will not use their delegated powers to weaken substantive human rights and equalities protections by losing the mechanism to enforce those that we currently enjoy from Europe.
House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]
Baroness D'Souza ExcerptsFriday 8th September 2017
(6 years, 8 months ago)
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Baroness D'Souza (CB)
My Lords, I shall begin by making it clear that there is nothing ad hominem about this debate. We are extremely fortunate to have hereditary Peers providing expertise on development, aid, science, transport, the environment, learning, health, defence, law and business, among many other fields. Those Peers also regularly contribute to a host of other issues that come before the House, more often than not with a particular kind of disinterest that makes their contributions all the more valuable.
Today, we are discussing the principle of maintaining the 90 or so hereditary Peers in perpetuity by means of elections. We have heard the argument that it was a promise made at the end of the last century that must be honoured until full-scale stage two House of Lords reform takes place. That argument becomes weaker by the day. Over the last decade and more, the House has changed significantly by means of incremental agreements; now, we will possibly be discussing a degree of enforced voluntary retirement to reduce our numbers. We already have the power to debar those convicted of serious criminal offences—changes that would have been unthinkable only a few years ago. The circumstances whereby this odd situation arose are well-known: it was a deal in the interests of getting the main elements of the House of Lords reform Bill passed in 1999. The crucial amendment was tabled by the late, and much lamented, Lord Weatherill, who himself subsequently proposed a Private Member’s Bill to end hereditary by-elections.
In 2007, a survey of Peers resulted in 71% agreeing that hereditary by-elections should cease; yet support in the Chamber for the subsequent Constitutional Reform and Governance Bill—CRAG—was notable by its absence, thereby allowing a small group of Peers to talk it out. The view that any legislation now would be a breach of faith, if not contrived, is certainly not put forward with the best interests of the House in mind.
Phasing out hereditary by-elections is never going to be an easy fix, but there are some legitimate concerns, one of which is the potential imbalance between the two main parties, were there to be a cessation of by-elections. Another is that we, as a Chamber, might be spurning unique experience or expertise by abolishing by-elections. Surely there could be a system whereby hereditary Peers wishing to sit in the Lords could apply, like others, to be Members based on criteria such as expertise and willingness to contribute regularly. That system could be weighted to reflect a more equitable balance between the parties.
I know that a hustings system, which helps to select hereditary peers who offer expertise, is now routine, but it is still the operation of a hereditary principle. That is what sits uncomfortably with the image of the House of Lords that most of us wish to promote—that of a spare, experienced and expert body of people, carrying out a vital scrutinising role and thereby acting as a constant check on Government powers.
It is too easy for critics, of whom there are many, to lob brickbats at us: we are unelected; we are too many; we are unrepresentative; we are elitist. It is this latter charge that we could relatively easily dispense with. In the past few years, a number of mechanisms have been employed to derail efforts to confront the hereditary issue. These have included what cannot be called other than filibustering, and of course the continuing heavy reliance on the commitment made before the passing of the 1999 Act. Perhaps a further factor might be the unwillingness of many in this Chamber to state publicly their belief that the practice of by-elections should now be phased out.
A rational, thought-through argument upholding the hereditary principle has yet, in my view, to be articulated. I therefore hope that this Bill will continue its passage through this House, and an accommodation will be reached that reiterates the value of the hereditary Peers we are fortunate to have but recognises—perhaps sadly—that the principle must now come to an end.
Trade Union Bill
Baroness D'Souza Excerpts(8 years, 1 month ago)
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The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills and Department for Culture, Media and Sport (Baroness Neville-Rolfe) (Con)
My Lords, it is a pleasure to be back debating this important Bill. Since our Committee stage, the Select Committee chaired by the noble Lord, Lord Burns, has reported and we have had a comprehensive debate on the issues raised. I have tabled a number of amendments to respond to concerns expressed in Committee and I will continue to be in listening mode today.
The Bill is about rebalancing the abilities of union members and the interests of the wider public. It will restore a level of fairness to our industrial relations regime, and give effect to the Government’s manifesto commitments. We have seen further strike action by junior doctors, which would have been valid had the provisions of this Bill already been in force, which goes to show that the Bill is not about stopping strikes.
The threshold provisions in Clause 3 ensure that strike action happens only where there is a strong and positive mandate from union members. It cannot be fair that strikes can go ahead on the basis of low turnouts and low support, particularly in important public services where they can have serious consequences for the public.
I appreciate that noble Lords are concerned about the uncertainty for unions in complying with the new rules on balloting. As I explained in Committee, existing legislation incorporates requirements of reasonableness to ensure that balloting obligations are not unduly onerous for unions, and that unions are protected against challenge over insignificant breaches of the balloting rules.
I appreciate that there will, at times, be uncertainty for unions in making precise calculations where a ballot includes some staff who deliver an important public service and some who do not. The 40% threshold applies only to ballots where the majority of eligible union members are delivering an important public service as specified in secondary legislation. I have reflected carefully on concerns that it would be difficult for unions to make a judgment in these circumstances. I have brought forward Amendment 1, which would provide unions with an additional “reasonable belief” defence as to whether a majority of their eligible members are normally engaged in delivering an important public service. This means that unions will not be liable for breaches of the 40% threshold where they reasonably believe that the majority of members involved in a ballot do not normally provide an important public service. Under these circumstances, their decisions will be protected from legal challenge, even if the reasonable belief later proves erroneous.
Noble Lords have raised concerns that unions may feel that they have to go through a complex and bureaucratic process to conduct a ballot, or risk litigation over their judgment. The noble Baroness, Lady Burt, suggested in Committee that the concept of reasonable belief could be introduced to address these issues, and that is what this amendment does. It will ensure that unions can take a sensible and proportionate approach in making their assessment under the new threshold.
I have sought to explain that this Bill seeks to strike the right balance between the interests of unions and their members, and those of the wider public. Amendment 1 does just that, and ensures that unions have flexibility when applying the new rules, in line with the existing legislative protections. I commend Amendment 1 to the House.
The Lord Speaker (Baroness D’Souza)
My Lords, if this amendment is agreed to, I cannot call Amendments 1A or 1B by reason of pre-emption.
Equality (Titles) Bill [HL]
Baroness D'Souza Excerpts(10 years, 5 months ago)
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Lord Lucas
My Lords, I am very much in the hands of the House when it comes to whether it wishes to accept amendments or not. I am content with the current scope of the Bill, so far as it goes, but I shall not stand in the way of the House if it wishes to change that. I certainly agree with the intent of my noble friend’s Amendment 4. I think that the Bill should cover Ireland. However, as to whether it should be restricted to peerages or baronetcies, I tend to come at this from the point of view of gender equality, and therefore do not particularly wish to preserve little islands of male supremacy in whatever strange form they may exist. There was certainly a dispute going back in my family as to whether or not they were the hereditary sword bearers in front of the Queen. They lost that argument, but I am aware that these offices exist. As an aside, I am also rather intrigued by the history of the title of my noble friend Lord Caithness. If we could make this measure retrospective, we might have a number of Lord Caithnesses and perhaps they could duel to the death to decide who should succeed. However, other than that, I am content with the Bill as it stands, except that I think Amendment 4 looks quite nice.
The Lord Speaker (Baroness D'Souza)
Does the noble Earl wish to withdraw the amendment?
The Earl of Caithness
Yes, but I want to say to the noble Baroness, Lady Deech, that she hit the nail on the head with regard to the words “hereditary title”. Because it is so ambiguous, the purpose of this amendment is to narrow it down; otherwise, this will become a lawyer’s paradise, particularly in Scotland where heredity is a different game. The Bill seeks to impose on five different regimes one solution that fits all, the principle of which none of us disagrees with. In Scotland, the position is very different and there are huge complications which will end up in a number of court cases. That is why I want the Bill to be much more specific. However, I wish to comment on Amendment 2, which the noble Earl, Lord Erroll, will move, so at this stage I will withdraw Amendment 1.
Lord Trefgarne
My Lords, I invite the noble Baroness the Lord Speaker to put the Question.
The Lord Speaker
The Question is that this amendment be agreed to. As many as are of that opinion say content, the contrary not-content.
House of Lords Reform Bill [HL]
Baroness D'Souza Excerpts(12 years, 3 months ago)
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The Lord Speaker (Baroness D'Souza)
My Lords, I should make it clear that if there is no unanimity on Amendment 215B, and in accordance with the provisions of the Companion to the Standing Orders, it will be negatived.
Amendment 215B