European Union (Withdrawal) Bill

Debate between Baroness Massey of Darwen and Lord Brown of Eaton-under-Heywood

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Baroness Massey of Darwen (Lab)]

My Lords, Amendment 37 focuses on the protection, welfare and rights of children once the UK is no longer a member of the EU. I am disturbed by the notion of excluding the European Charter of Fundamental Rights in our domestic systems. Why is removing this being considered? What can be put in its place that is better? Perhaps the Minister can give the House an explanation.

[Lord Brown of Eaton-under-Heywood (CB)]

Are the microphones on?

[Baroness Massey of Darwen]

I apologise if there are no microphones, although it is not my fault. There has been little effort to consider how Brexit might affect children. I do not know who has been consulted on this. Perhaps the Minister can tell me. Have children been consulted? Organisations now often consult children about matters which affect their lives. Have the UK commissioners for children been consulted? They are advocates for, and speak for, children. Has the voluntary sector, which does such a splendid job in supplying information and support to children and those of us who work for them, been consulted? If not, why not? Have academics who support children’s rights been consulted? If all these people have been consulted, what are the results of such consultations? Has an impact assessment on how Brexit will affect children been considered? If not, why not?

I believe that there are 80 EU instruments which entitle children to protection and welfare. EU directives have not all been incorporated into UK law, yet these are comprehensive. There are numerous case studies on children as victims of crime—the sexual abuse and exploitation of children, criminal justice, and legal aid for victims. All these emphasise what it will mean to not have the European charter in place. Some have argued that our domestic laws on children are sufficient to protect them in all instances. This is not the case and I shall discuss it in a moment.

Last Monday, my noble and learned friend Lord Goldsmith spoke about the need to retain the European Charter of Fundamental Rights and stated that the charter will not be downloaded into our domestic law. An opinion by a Queen’s Counsel concludes that this would weaken human rights protection in the UK. The independent Bingham Centre for the Rule of Law has stated that the charter does much more than codify rights and principles. The Joint Committee on Human Rights, commenting on the Government’s right-by-right analysis of the withdrawal Bill, concluded with six devastating paragraphs in support of retaining the charter. The final paragraph states that some of the charter rights,

“are based wholly or in part on provisions of the ECHR”.

Other international treaties also come into play that have not been incorporated into domestic law, such as the UN Convention on the Rights of the Child, to which the UK is a signatory. However, the UNCRC is not incorporated fully into UK law and there are no legal or financial sanctions for non-compliance with its provisions. The noble and learned Baroness, Lady Butler-Sloss, was hoping to comment on this but has had to leave.

The response also states that,

“a failure to preserve relevant parts of the Charter in domestic law after Brexit will lead to a significant weakening of the current system of human rights protection in the UK”.

The Children’s Rights Alliance points out that the European Charter of Fundamental Rights sets out in a single document the fundamental rights protected in EU law and of particular importance to the protection of children’s rights.

We all know that the UK under successive Governments has made great strides to protect and enhance the welfare of children. Examples include the Children Acts of 1989 and 2004 and the Children and Social Work Act 2017, which is not yet in force. However, our domestic laws do not cover the full range of children’s entitlement regulated by the EU. We have no constitutional commitment to children’s rights at central government level, the level at which most EU legislation will be amended or repealed after Brexit.

I give other examples. The Children Act 1989, of course, enhanced the welfare of children but did not regulate the full range of children’s rights to protection covered by EU law—for example, as regards consumer protection and health and safety. The Children Act 2004 strengthened the 1989 Act but does not cover cross-border recognition and enforcement of family orders currently regulated by EU Brussels I and II. In particular, the right of a competent child to be heard in relation to child abduction or family disputes is significant. The Equality Act, welcome though it is, is not particularly strong as an instrument for children’s rights and does not cover many issues that would be of concern post Brexit—for example, equality in the workplace.

The Children and Social Work Act improves decision-making and support for looked-after children and for safeguarding work at the local level. It also makes relationships and sex education appropriate to age mandatory in schools. However, it seems to contradict amendments introduced by the Immigration Act 2016, specifically on care support for unaccompanied children when they reach the age of 18 and do not have leave to remain, are not asylum seekers or do not have a first immigration application for leave to enter or remain.

Other Acts such as the Borders, Citizenship and Immigration Act 2009, the Modern Slavery Act 2015 and the broadcasting Act 2003 contain measures to protect children, but are not fully comprehensive and obligations may be vulnerable to repeal when implemented through statutory instruments. The EU (Withdrawal) Bill could create problems for thousands of families affected by divorce or separation or involved in cross-border EU-UK family or child protection cases.

In 2017, UNICEF published its report on the progress made on children’s rights in the UK. It stated that while we have made much progress, we are weak in assessing the impact of legislation and policy on children. There have been significant advances in child protection and welfare in Wales, Scotland and Northern Ireland. However, these devolved measures will be impaired by Brexit as much of EU law affecting children may well be repealed through the use of delegated powers at a centralised level. This, of course, is worth a debate in itself. The Minister may say that Government cannot ignore the Human Rights Act 1998 and the Equality Act 2010. But these Acts, welcome though they are, have limited relevance to children. The European Charter of Fundamental Rights and the UNCRC go wider and deeper. Does the Minister accept this? If so, could he say—I ask this again—what will replace the European Charter of Fundamental Rights? The only way to ensure that children’s rights and welfare are protected is for it to be incorporated as part of retained EU law.

The Government should ensure that all existing protections for children’s rights and welfare in the EU legislative framework are reserved in domestic law. We cannot leave children from the UK—but also, in certain cases, from the EU—vulnerable to unclear or non-existent laws. I cannot understand the decision to drop the European Charter of Fundamental Rights when nothing else is in its place, and I do not know what will be. Why bother? Why reinvent? Any charter or convention, if attacked, must surely weaken the commitment to human rights, and we should resist such attacks with all our might.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

My Lords, I too strongly support the rights of children. Indeed, I support the rights of the elderly, in whom, like the noble Lord, Lord Foulkes, I must, alas, declare an interest. However, with the best will in the world, I cannot support any of these amendments. The first point I make is that we debated reasonably fully last week the desirability or otherwise of incorporating this charter into UK domestic law in this Bill. The previous group is said to have been “already debated” and I find it difficult to see the logic of now debating a host of questions which raise the same idea, only more narrowly focused on one or two specific, individual charter provisions. This debate has ranged far and wide. We have even been back to cross-border co-operation, which was the subject of an earlier group, and I am certainly not going back down that trail.

I shall turn to the specific rights addressed here. The suggestion that the rights of children could be a primary consideration in any decision affecting them is hardly radical. As the noble and learned Lord, Lord Mackay, noted earlier, the Children Act 1989 puts it rather higher than a primary consideration: it is the “paramount consideration”. Of course there are areas beyond the scope of the Children Act as such which are in play with regard to children, but for the life of me I cannot think of a single case in recent years affecting children—or, indeed, the elderly—which would have failed under the convention and the common law but would have succeeded only by reference to the charter; nor can I envisage such a case in the future. Somebody may be able to devise a scenario which would meet that but I have not been able to do so.

In any event, the Article 24 rights are regarded as retained general principles of EU law and therefore will continue to apply. The right to be heard on the part of children is not a contentious one. I took the opportunity of the regrettably short break we were given this evening to look at a particular decision—indeed, I think it was one of the last Supreme Court cases I was involved in, and my noble and learned friend Lord Hope will remember it because he presided over it. It was a group of extradition cases under the title of HH v Deputy Prosecutor of the Italian Republic. In the course of it the question of the children’s views was raised; it was an extradition case but the same principle applies across the wide field of children’s interests. The noble and learned Baroness, Lady Hale of Richmond, who gave the lead judgment in the case, concluded:

“I share the view of the Official Solicitor that separate legal representation of the children will rarely be necessary, but that is because it is in a comparatively rare class of case where the proposed extradition is likely to be seriously damaging to their best interests. The important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly”.


I do not know of cases where children’s interests are lost because they are not permitted to express their views.

[Baroness Massey of Darwen]

I have a number of case studies on these issues, which I will show the noble and learned Lord. Children’s rights are not always consistent, particularly in youth justice cases. I know that children in custody in the youth justice system are very often ignored, mistreated and not heard.

[Lord Brown of Eaton-under-Heywood]

I would be extremely obliged to the noble Baroness if she would put these cases clearly and crisply on a piece of paper and share them not only with me but with the Official Solicitor, who I think would be extremely interested in the proposition that children’s rights are being ignored in the youth justice system. But if they are ignored now, when the charter is available, what is to be lost?