European Union (Withdrawal) Bill

Lord Cashman Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Wallace of Tankerness]

They talk about nothing else in Harrogate, as my noble friend Lord Willis said. But this proposal is just for clarity’s sake, given that putting one public sector equality duty in the Bill could raise questions as to the status and validity of the other ones.

Another Latin maxim, if I am allowed, is ubi jus ibi remedium. In a number of our debates on equalities and human rights issues, we have heard Ministers talk about rights but say all too little about remedies—and when they do talk about remedies they do so in a way that gives some cause for alarm. The noble Lord, Lord Callanan, time and again, reminds us that the underlying purpose of the Bill is to ensure that there is a smooth transition in law on our departure from the European Union. That entitles us to question what is meant by law.

On 5 March in a slightly different context, the noble and learned Lord, Lord Keen, said in response to an intervention from me:

“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”.—[Official Report, 5/3/18; col. 964.]


But is it right to divorce rights from remedies quite so easily? The noble and learned Lord will be familiar with Section 126(9) of the Scotland Act 1998, which states that,

“all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties, and (b) all those remedies and procedures from time to time provided for by or under the EU Treaties, are referred to as EU law”.

For the purposes of the Scotland Act, EU law embraces both rights and remedies.

Too often in our debates, we have heard Ministers reassure the House that the Government are committed to retaining rights but they have sidestepped the issue of remedies. I believe that if there is to be a smooth transition from EU law to EU retained law, it must include rights and remedies. The Government have not given us sufficient reassurance on this. That is why these amendments are necessary and I commend them to the House.

[Lord Cashman (Lab)]

My Lords, I shall speak to Amendments 245A and 242A, and I assure your Lordships that you will get no Latin from me—maybe some Cockney rhyming slang, but certainly no Latin. I have added my name to these two amendments, which were so eloquently and powerfully moved and spoken to by the noble Lord, Lord Low of Dalston, and powerfully supported by the noble and learned Lord, Lord Wallace of Tankerness.

Noble Lords will be aware that I spoke at Second Reading on the issue of rights and protections, and have returned to the same during Committee in your Lordships’ House. I make no excuse or apology for repeating what are grave concerns about the continuation of rights and equalities that we currently enjoy in the United Kingdom. As I have said before—it bears repetition—these rights have been hard fought for and, often, hard fought against. That they exist now is due to the hard work, persistence and sacrifices of generations.

These rights have been achieved through either recourse to law, proceeding through the courts to the European Court of Human Rights in Strasbourg or through the Court of Justice of the European Union, or by legislative changes primarily introduced since the election of the Labour Government in 1997. As I have said, there is deep concern that this Bill, and particularly delegated powers contained within it, will ultimately be used to reduce rights and equalities in the United Kingdom—including in Northern Ireland, where consequent problems for the Good Friday agreement will arise. I will not return to the issue of the charter of fundamental rights today but I will on other occasions.

Amendments 242A and 245A seek to bring security of protection and non-regression by ensuring that delegated powers are not used to diminish protections in the Equality Acts of 2006 and 2010. But I and other noble Lords, and people and organisations outside Parliament, also have concerns about other equality and human rights laws. The certification approach adopted in Amendment 245A could be extended to cover such rights, by requiring a Minister to certify that secondary legislation under the Bill does not diminish protection in equality and human rights law generally.

On Wednesday 7 March, we again discussed amendments that would restrict the use of delegated powers from making any changes to equalities and human rights legislation. The Minister, the noble Lord, Lord Callanan, raised an objection to the amendments that we were discussing on the basis that delegated powers would be needed to make technical changes to our laws to reflect exit from the European Union. He went on to state that the Government could not accept the amendments,

“as the legislation that underpins these rights and protections will contain many provisions that will become deficient after our exit”.—[Official Report, 7/3/18; col. 1168.]

In his reply, the Minister offered examples where the Equality Act refers in several places to EU or community law, as the noble and learned Lord, Lord Wallace of Tankerness, said, and that such references needed to be replaced with the term “retained EU law”. I will not detain the House further by extending the quotation, but I point out that Amendment 245A addresses this concern because it does not prevent a Minister making necessary technical changes to reflect our exit from the European Union, as these technical changes would not diminish existing protections.

In the same debate, the Minister referred to the government amendment tabled in the other place, now paragraph 22 of Schedule 7, saying that it will,

“secure transparency in this area by requiring ministerial statements to be made about amendments made to the Equality Acts under each piece of secondary legislation under key powers in the Bill. These statements will … flag up any amendment to the Equality Acts and secondary legislation made under those Acts, while also ensuring that Ministers confirm that, in developing their draft legislation, they have had due regard to the need to eliminate discrimination and other conduct prohibited under the 2010 Act”.—[Official Report, 7/3/18; cols. 1167.]

This statement does not answer the concern addressed by Amendment 245A: that the Government’s approach in the Bill does not fulfil their commitment to maintaining our current protections. It merely restates the existing statutory duty to have “due regard”.

In debate, the Minister has reiterated clear commitments that there will be no roll back of rights. Therefore, I say to the Government and to the noble and learned Lord the Minister: put the commitments, and the assurances given in this House and in the other place, in the Bill and end the uncertainty that is so widely shared. I ask your Lordships that, when we return again on Report to the issue of the protection of equality and human rights, as we will, we work together to ensure that the departure from the European Union does not signal the beginning of a departure from the rights and protections that we currently enjoy and which are continuously under threat.

[Lord Bassam of Brighton (Lab)]

My Lords, I will speak to Amendment 246 in this group—entre nous, I support the amendments from the noble Lord, Lord Low; they are rather good, and I can well understand why colleagues have added their voices in support. My amendment picks up a slightly different point. It emanates from the excellent report from the Constitution Committee, which in its summary, at paragraph 33, recommended that the Government bring forward statements accompanying regulations which modify retained EU law so that they provide an explanation of the intention of the modification to guide the courts.

One of the endearing frustrations of this House, and no doubt the other place, is that we can have very little purchase on statutory instruments. Rightly, I think, they are unamendable, but clearly there has to be a way of improving the understanding of what a statutory instrument does. This legislation is riddled with Henry VIII powers and powers that I think go well beyond what a Minister should properly have access to in making, effectively, law by decree. That is the central concern of a lot of the recommendations in the Constitution Committee’s report. We are asking here for the Minister to ensure that, when a statutory instrument is brought forward, it has to satisfy a test of appropriateness under the relevant sections, state an intention of any proposed modification from the retained EU law that is carried over and provide guidance to courts to assist with interpretation.

Reflecting on some of the more recent debates on statutory instruments in your Lordships’ House—for instance, last night’s debate on free school meals—I wonder whether it would be helpful to your Lordships if we had a better understanding and explanation of those statutory instruments. The thing that always comes across to me when I listen to debates on SIs is this: there is very poor background information. The statistical data that is supposedly there to underpin the argument is often missing, the impact assessments have not been done, and we do not really understand the real effect of what is before us. In my book, that means that there is a lot of scope for the Government to get away with things. I do not think that is right or a product of good lawmaking.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, I very much support the points made by my noble friend Lady Lister with regard to human rights issues. Before I speak about those, however, I congratulate the noble Lord, Lord Patten, on an outstanding and powerful speech this morning.

We discussed much of this last week: the relationship between the Good Friday agreement and the European Union and how the membership of both Ireland and the United Kingdom underpinned everything in the agreement. I will concentrate on a couple of points on how equality and human rights affect this Bill and the Good Friday agreement and the relationship between the two.

The Good Friday agreement, and the negotiations leading up to it, concentrated heavily on the issues of equality and human rights. When I took the 1998 Northern Ireland Bill through the House of Commons, a great part of it dealt with them. As your Lordships will know, the current impasse or deadlock between the parties in Northern Ireland rests partly on disagreements about human rights and equality issues. This is, however, no academic matter; it is central to the progress of the talks in Northern Ireland and the integrity of the Good Friday agreement.

My noble friend Lady Lister referred to the joint committee between the Republic and Northern Ireland on human rights and equality issues. Indeed, she referred to the European Union Charter of Fundamental Rights, which is common to both parts of the island of Ireland. It does not take a genius to work out that, if we leave the European Union, what happens to the relationship between a country that remains in the European Union and one that has left is a considerable problem.

There is also the issue of the equality of citizens in Northern Ireland. This really is a difficult one. For many years, anyone born in Northern Ireland, or whose parents or grandparents were, has been entitled to an Irish passport. Under the new arrangements, they would still be entitled to an Irish passport but, in gaining it, would also be entitled to citizenship of the European Union. What about the unionist who is British? It is said that perhaps 35% or 40% of the unionist community in Northern Ireland voted to remain in the European Union. Would someone want to become a citizen of the European Union while regarding themselves as British? They will certainly not identify themselves as Irish.

This goes against a fundamental principle of the Good Friday agreement: parity of esteem between the parties in the northern part of Ireland. It means, for example, that many people in Northern Ireland are entitled to citizenship but—effectively—many people are not. That goes fundamentally against the principle that the noble Lord, Lord Patten, referred to when he talked, quite rightly, about the issue of identity.

Again, what about the relationship between the north and the south in criminal justice and policing? The big issue is that 75% of those people who flee Northern Ireland because they are criminals end up in the south. What happens to the European arrest warrant? What happens to the remarkable co-ordination and co-operation between the two police forces on the island of Ireland? Special arrangements have to be made.

Those are particular points that we did not touch on in our debate last week. I know that the Minister, a firm supporter of the Good Friday agreement who understands its significance in bringing about peace in Northern Ireland over the past two decades, will take these issues away and come back to us on Report, at which point we will have reached the 20th anniversary of the agreement. I hope that that anniversary will be commemorated by recognition of these amendments.

[Lord Cashman]

My Lords, I will speak to Amendment 308ZA, to which I added my name to those of my noble friends Lady Lister of Burtersett and Lord Judd. I am extremely pleased to follow the other noble Lords who have spoken, particularly the noble Lords, Lord Patten and Lord Murphy.

The amendment is concerned with the equivalence of rights between Northern Ireland and the Republic of Ireland. The approach outlined would allow for continued institutional alignment in Northern Ireland with the EU-derived safeguards and frameworks that underpin the Belfast/Good Friday agreement. The protection of the Good Friday agreement needs to be considered in its detailed implementation as well as in its broad principles.

As I said, the amendment focuses on the protection of existing EU-derived human rights—safeguards that link to the Good Friday agreement. The equivalence of rights on a north-south basis is a defining feature of the Good Friday agreement. A further signal of the expectation of long-term north-south equivalence is seen in the duty of the joint committee established under the agreement to consider,

“human rights issues in the island of Ireland”,

as well as,

“the possibility of establishing a charter, open to signature by all democratic political parties, reflecting and endorsing agreed measures for the protection of the fundamental rights of everyone living in the island of Ireland”.

The joint committee welcomed the commitment in the draft withdrawal agreement that the UK,

“shall ensure that no diminution of rights, safeguards and equality of opportunity … results from its withdrawal from the Union”.

However, it stated that the Government’s approach would only ensure equivalence of rights on exit day from the European Union and said:

“There is a risk that … a growing discrepancy between UK and EU law will emerge, thus eroding the North-South equivalence of rights in Ireland”.


That would be as a consequence of either the UK or the EU adopting higher standards. The joint committee called for the withdrawal agreement to provide for continuing north-south equivalence of rights post Brexit, as established under the 1998 Good Friday agreement.

Furthermore, the joint committee is concerned that the failure to retain the European Charter of Fundamental Rights and EU equality legislation within the United Kingdom will result in a diminution of rights in Northern Ireland and potentially cause a divergence of rights on a north-south basis. The joint committee—it is worth restating this—calls for,

“the text of the Withdrawal Agreement to commit the UK to retaining in UK law the Charter of Fundamental Rights of the EU and to enable the UK to keep pace with its evolving protections over time”.

For that reason and for so many more, I support the amendment and the other amendments in the group.

[Lord Jay of Ewelme (CB)]

I support Amendment 261 in the name of the noble Lord, Lord Patten. I regret that I was unable to take part in the Second Reading debate, because I was with your Lordships’ EU Committee in Dublin, Belfast and Londonderry and on the border between Northern Ireland and Ireland. Just a little while ago, I was standing on a bridge across the border with traffic thundering past in both directions—EU lorries, Irish lorries and British lorries. It seemed to me inconceivable then and it seems to me inconceivable now that any kind of barriers could be put in the way of traffic moving freely across that lengthy and complicated border. It is extremely hard to see how we can avoid such controls if we are outside the customs union; that seems an extraordinarily powerful and logical reason why the right course for us to take is to stay within the customs union. It is equally clear that the continuing process of peace in Ireland—north and south—depends on the Good Friday/Belfast agreement, and that the strength of that agreement will be greater if it is included in the Bill. For that reason, I support the amendment proposed by the noble Lord, Lord Patten.