Brexit

Lord Cashman Excerpts

Saturday 19th October 2019 Lords Chamber

[Lord Cashman (Non-Afl)]

My Lords, it is a real pleasure to follow the noble Lord, Lord Bowness, and I agree wholeheartedly with his intervention.

The noble Baroness the Leader, in repeating the Statement, referred to resolving the differences and divisions, and I wholeheartedly agree, but how can there be a resolution when the demands and aspirations of over 16 million people—48%—are disregarded? They are people who, as the noble Lord, Lord Lipsey, said, are marching on our streets today because they feel unheard and left out of the negotiated deals.

Having read the additional documents published on 17 October, I have to say that my fears about human rights and fundamental rights in the United Kingdom are reinforced, and therefore I am deeply concerned about the human rights landscape that lies ahead of us. However, I will not go down that avenue, as I have been down it frequently in our other debates.

I do not know about your Lordships, but I wake up in the morning to the sound of music—and I do not mean the dulcet tones of Julie Andrews. I listen to commercial radio to remind me of what the real world is like. In certain advertisements about the preparations for leaving the European Union, I am informed that I must prepare for the new restrictions when travelling to, trading with or driving within the European Union. Those are just three examples. Can the Minister tell me where in the arguments that were made for leaving the European Union the British public were told that they would face more restrictions, more red tape and fewer freedoms? I could give other examples of freedoms that citizens will lose: the right to study in and the right to freedom of movement through 27 other countries, and there are many more. Nowhere were the British people told what they would lose; only what they might gain.

In order to move on, as other noble Lords have urged, I say to the Government and to the supporters of their withdrawal Act that, if they believe that this deal is so brilliant and that it is what the British people demanded in 2016 by voting in the referendum by a very narrow majority, then have the guts and integrity to put it to the British public in a confirmatory referendum. They should ask the British public whether they accept this deal, these conditions and all the consequences that will follow. But no; the Government will fight shy of holding the British public accountable—yes, accountable —in this long drawn-out saga. They will utter the phrase “the will of the people”, ignoring that the will of the people can and does change. I do not often quote Lady Thatcher but, to use her word, the Government are “frit”.

In conclusion, during these three years of pantomime politics, aided and abetted by the leadership of the Labour Party in the other place—a party that I have left after 45 years of membership—it has been said that we are being led by donkeys. That is the wrong analogy. Donkeys would have got us somewhere. We are not being led by donkeys; donkeys would have done better. Therefore, it is time to put this deal—if it is the best that the Government can do—back to the British people.

European Union (Withdrawal) (No. 6) Bill

Lord Cashman Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Cashman (Non-Afl)]

My Lords, it has been a very long time since we have heard from this side. I reassure the noble Lords who have just given way that I did not intend to speak either and will be extremely brief.

As some noble Lords know, I worked for 15 years in the European Parliament with the noble Lords, Lord Callanan and Lord Balfe, the noble Baroness, Lady Ludford, and other noble Lords. I am not making any political points—this is exactly how I feel—but the European Union represented by some in this House is not the European Union that I have experienced and that I know well. It is a European Union of representatives of their countries who come together in order to reach a compromise to serve the greater good and the greater number of people. Governments come together in the Council of Ministers to work and vote together, and, if there is a big issue, it is that when those Governments vote in the Council of Ministers they very rarely reveal to their national parliaments how they voted. It is about voluntarily pooling sovereignty to achieve far more than would be achieved by acting alone. That is the European Union that I know—working with colleagues as the rapporteur on the Schengen movement and ensuring that, within that, there is no discrimination at the border on pivotal grounds such as race, ethnicity, religion, belief, age, disability, gender, sexual orientation or values.

Unless we go back to the past, we will recreate it. I believe that the European Union was quite literally born out of the ashes of the Second World War. Others have heard me say this and I will revisit it again and again. Countries decided that they would no longer fight one another for land, power, coal or steel but would work together. From the ashes of the Second World War, of people’s hopes and dreams, and of crematoria dotted across Europe, there was a determination that we would never look away again while a group, a minority or a country was targeted and scapegoated—and that is deeply personal to me. If I, as a gay man, had been living in certain parts of Europe during the Second World War, I could literally have been taken to one of those camps and been worked to death. I must connect with the 6 million-plus Jews who were obliterated because of their religion and with others.

If there is discrimination and a rise of the right wing in Europe in the countries that have been cited, is that not all the more reason to work together to ensure that that is brought to an end? We should not turn away and say, “It is only the things that matter to Britain that I am concerned with”. What makes us human is our ability to stand in the shoes of the other and ask, “Would I want that to happen to me or my children?”.

I can see certain Members on the Front Bench getting perhaps a little impatient with me. What is his point? Do not mumble from a sedentary position. If the noble Lord has something to say, can he please stand and say it? I will always give way.

The reason I have decided to speak today, after a long silence since my original initiation in the early debates, is that no one has mentioned those individuals within the groups who face appalling uncertainty: the 3 million EU citizens who live in this country. If for no other reason, this insurance policy—this Bill before us today—gives them a degree of certainty and hope, and if for no other reason I would grab this Bill with both hands.

As the right reverend Prelate the Bishop of Leeds said: what about division? By going for a no deal Brexit, what happens to the 16 million-plus, such as me, who with our values would feel completely disconnected from our country? Do we heal the division there? No— we reinforce it. Therefore, for no other reason than the ability to stand in the shoes of others—yes, including those who voted leave and who want a resolution—we have to work together.

The noble Lord and others referred to having trust in the Prime Minister, but one of our concerns is that we do not believe what he says. Other noble Lords have referred to reports from other capitals. But if this Bill, which we have before us today, gives the Prime Minister in whom most of your Lordships seem to have faith and belief the time to reach a deal that brings parts of this country together that, at the moment, seem forever divided, we should give your Prime Minister this insurance policy of extra time.

European Union (Withdrawal) Bill

Lord Cashman Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

But what if at some future date the ship sails into exceedingly choppy waters and those who see such rights as red-tape barnacles—perhaps the International Trade Secretary—rather than as integral parts of the engine gain ascendancy and/or there is a change of captain? Surely those currently in charge of the ship should seek to protect the engine from such marauding by accepting these amendments, so that the ship is genuinely inequality-proof.

[Lord Cashman (Lab)]

My Lords, I rise to speak very briefly, and I hope that in that respect I will be a safe harbour for your Lordships this evening. I have added my name to the amendments and I share the concerns expressed by noble Lords today in relation to equalities and human rights. Amendments 83A and 83E would protect against the use of delegated powers in the Bill —I have often expressed concern in that regard—to diminish protections in the Equality Acts 2006 and 2010. Equally, they would address shortcomings in an amendment introduced by the Government in another place.

The amendments relate only to the exercise of delegated powers. They would not set existing rights in stone or prevent Parliament legislating in future to amend laws by primary legislation—indeed, the preferred route when looking at issues such as equalities and rights. Rather, they would guard against the effective transfer of power from Parliament to the Executive by requiring substantive changes to fundamental rights such as equality rights to be made by primary legislation.

In the previous discussion on similar amendments, I urged my friend the Minister to clutch them to his chest but he disregarded my plea. Tonight, I commend these amendments to the House. As my noble friend Lady Lister of Burtersett, said, I had hoped that the Government would accept them but they have not. There are reassurances that NGOs and organisations such as the Equality and Human Rights Commission are still looking for. It is not too late to give those assurances and perhaps, if this is not the Government’s preferred way, find another way to address these deep and real concerns.

[Lord Adonis]

My Lords, I strongly support the amendments, but I wish to ask about what I thought was a remarkable statement made by the Deputy Speaker after the previous Division. She announced that the result for the Contents in the Division on the single market amendment was out by two. The vote in the Contents in that Division was 247 rather than 245. I ask the Minister, in the interval before he replies to the debate, to explain to the House what happened. This is now the fourth Division on the EU withdrawal Bill where figures have been misreported to the House.

European Union (Withdrawal) Bill

Lord Cashman Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Faulks (Con)]

My Lords, the arguments in favour of the amendment seem to come down to two. One is that we are leaving the EU so we need all the rights that we can possibly get, and we need them as protected as widely as we possibly can. The second seems to be, “Why pick on the charter if you are retaining the rest of EU law?” I will not repeat all the arguments that we have already heard, and I will endeavour to be brief.

I have studied the Government’s analysis of the various rights contained in the charter, and almost all of them seem to be covered by our law in statute, by common law or by the European convention that is now part of our law by the Human Rights Act. Indeed the noble and learned Lord, Lord Goldsmith, was right all those years ago when he said that the charter added nothing. Important though rights are, and ensuring their protection must be a fundamental part of what we do in this House, we should not presume that every convention, charter or other aspirational document must necessarily result in justiciable rights—that is, rights that you can sue on. If the amendment is passed, I will be able to bring a claim on the basis that my dignity has been invaded. Of course dignity is very important, but if we had thought that it was something that ought to give rise to a claim for damages then over our long legal history either our judges would have invented such a claim or Parliament would have done so. We seem to have got on reasonably well without it. How are judges supposed to make sense of this to make it legally coherent?

Many noble Lords may have noticed that the amendment specifically excludes the preamble to the charter and Chapter V—understandably, because Chapter V is to do with European elections. But the preamble frames the charter and explains what it is all about. It is quite a lengthy part of the charter, and begins:

“The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values”.


So the whole charter is premised on membership of the European Union.

Let me take just two further examples from the charter. Article 16 confers,

“freedom to conduct a business in accordance with Union law and national laws and practice”.

Article 36 states:

“The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaties, in order to promote the social and territorial cohesion of the Union”.


We are leaving the European Union. As the noble Baroness, Lady Ludford, said, the charter specifically deals with EU institutions acting in the scope of the EU law. How we are supposed to have it in our law to be relied on—justiciable—after we have left the European Union does not seem to me to make much sense. Much good law has come from Europe, I entirely accept, but we should not take a theological attitude towards it and assume that it has some greater status than anything passed by our legislature.

My final concern is that the amendment would directly frustrate the purpose of the Bill, which is to provide legal clarity as we leave the European Union. Profitable litigation is far more likely to flow if the charter is a part of our law; not the other way round.

I have an amendment to the clause, as the noble Baroness, Lady Deech, pointed out. The charter, a relatively recent document, was supposed to reflect the jurisprudence of the European court, and I do not quarrel with it as a summary of the way in which the court has approached various issues. It was in those circumstances that I thought it might be helpful to suggest that when one was interpreting a particular piece of retained law, if and in so far as the charter was part of it, one might look at the charter. We certainly do not want to be bound by the charter in future. My noble and learned friend may tell me that the answer to my amendment lies in Clause 5(5), although I have read that more than once and find it somewhat difficult to understand.

Suffice it to say that if we have the charter as part of our law in future, it will make very little sense. Who will interpret the charter? Of course, it is the European Court of Justice, with all the shortcomings pointed out by the noble Baroness, Lady Deech. This would be a great mistake.

[Lord Cashman (Lab)]

My Lords, I may offer a slightly different opinion on our discussion. It is really interesting as a member of a minority. Over the years, generations of lesbians and gay men and others of different minorities have stood before Parliament and requested equality—requested a life without discrimination. The arguments have gone back and forth, and laws went ahead that denied us equality and participation as equal citizens. We often then had recourse to the courts. Before the Human Rights Act, that was often painful, expensive and outside the choices of most ordinary men and women.

As a gay man having, at the age of 67, lived virtually all of my life without equality, it is interesting to hear the different legal arguments for a charter that enforces my right, among others, to non-discrimination, which does not exist anywhere else in UK domestic law. That it widens it further into the principle of non-discrimination and into every country of the European Union, where I would have freedom of movement and protection in those countries, is something that I welcome.

For me, the charter is a repetition of many rights that currently exist, but actually the formulation of some rights that hitherto were not listed and enumerated. For me, the repetition of a right does not weaken that right, especially when we are seeking equality and equal protection. The repetition of a right reinforces it. I care not if it is repeated again and again—from convention to charter to charter—because ultimately, if we seek equality and equal citizenship, we should have as many legal instruments on which to argue as we can.

I commend the noble Lord, Lord Pannick, on moving this amendment so eloquently. I welcome the arguments he outlined: to look again at a charter that lists your rights. To be able, within that charter, to know that you are either a victim or being denied a right offers a simplicity that brings with it, I believe, accountability—accountability of parliaments and accountability through the courts. I too am suspicious of the Government, and I say that to some of my friends who are in government. I have watched time after time as members of the Conservative Party in the European Parliament have voted against equality and non-discriminatory measures. That worried me for the 15 years I was there. I worry, too, that the Conservative manifesto 2015 said that it would scrap the Human Rights Act. I also worry, as my noble friend Lady Lister outlined, that the Conservative manifesto 2017 said:

“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European Convention on Human Rights for the duration of the next parliament”.


When it comes to the European convention and the charter, I want commitments beyond Parliament.

These rights are not for the Government to ditch. Indeed, the Government have no mandate to detach the Charter of Fundamental Rights from the rights that we have achieved in this country, and no mandate to detach the charter from the EU retained law. I believe that maintaining the charter brings greater legal certainty, not less. The Government’s declaration that the Charter of Fundamental Rights is not necessary is disingenuous. They cannot say on the one hand that it is not necessary and then argue passionately against its inclusion. That makes no sense whatever, but maybe I have not been in your Lordships’ House long enough.

Within the charter, rights exist that do not exist elsewhere in the European Convention on Human Rights: the inviolability of human dignity, the non-discrimination, the right to be forgotten, the rights of the elderly, data protection, and so on. Ministers and others have argued that it is not necessary to reaffirm the rights in the charter. I ask simply: why not? Why not reaffirm rights? We need reassurances for our rights and their protections now more than ever. This country has never been more divided and more hostile to the opinions of others. Discrimination and victimisation are not diminishing; they are on the increase. We face great challenges and unprecedented change, so we need more certainty and reassurance, not less. Reassurance is absolutely necessary if we are to embark on a journey whose destination is unknown, and the journey there needs to unite this divided country, not imperil it.

The rights are codified into a simple charter, and they come with a long history of the denial of rights and out of the commitment of a group of nations never again to return to the horrors of the past. As the noble Baroness, Lady Ludford, said, they cannot do all things with all situations—but, even if it is aspiration, what an aspiration to laud and support. The horrors of the past were faced by individuals and individuals who made up minorities, who were seen as different, as outsiders, and were defamed, misrepresented and made unpopular. They were painted as unworthy of equality, a threat. Those times and sentiments never disappear; they hover, waiting for the political opportunity, and wait they still do.

--- Later in debate ---

[Baroness Deech]

Can the noble Lord explain why the Equality Act 2010, with a very comprehensive list of non-discrimination, is inadequate?

[Lord Cashman]

Because in rights newly achieved we can never have too much challenge or support for a principle that came out of the treaty of Amsterdam of 1997, which for the first time gave a legal basis to the Community to take action based on non-discrimination on the grounds of race, ethnicity, religion, belief, age, disability and sexual orientation. Arguably, the very rights to which the noble Baroness referred came out of the treaty of Amsterdam of 1997.

I finish on this—on other generations of the past and their sacrifices by defending the charter, along with the Human Rights Act and the European Convention on Human Rights, both of which, as I have said, have been singled out rather worryingly in the 2017 Conservative Party manifesto. Let us retain the charter and reassure those generations that, when it comes to the defence of human rights and equalities, our arsenal is not depleted but well stocked and ready.

[Lord Cormack (Con)]

My Lords, of course we should recognise those who have made sacrifices for us in the past, and at the same time we should not forget how many of them were British.

We have had some very eloquent speeches in this debate, and I have perhaps made the mistake of listening to all of them. I hope that no one in your Lordships’ House would question my commitment to human rights, nor question my commitment to staying in the European Union—and I have spoken to that effect many times in your Lordships’ House. I very much hope that, if Brexit comes to pass—as I fear it will—it will be a soft and understanding Brexit. But I have been persuaded this afternoon by the very eloquent speeches not of the noble Lord, Lord Pannick, who nearly always persuades me, but of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the noble Baroness, Lady Deech, and my noble friend Lord Faulks.

The fact is that we are—deeply as I regret it—moving away from the European Union. I hope that we will indeed be able to move out with the deep and close relationship about which the Prime Minister is always talking. But we are moving out, and when this particular document was being adopted no one argued more eloquently against its generalisms than the noble and learned Lord, Lord Goldsmith. He did not see why we should sign up—but we did. If we were remaining in, we would of course remain signed up; it would be the right thing to do. However, as we are moving out, we have to dismiss the preamble and Chapter V.

We also have to ensure that this country, which through the centuries has been both a bastion and a beacon of liberty and human rights, honours its own history and continues to give an example to others. At the end of the Second World War, people looked to us and we, more than any other country, helped to put Germany together again as a democratic nation leading not only in Europe but in the world. We have not forgotten all those things, nor given up all those abilities and techniques—and we will have to exercise them again in the future.

Last week, without any hesitation, I voted for two amendments. I know that I shall be voting for others, because I think they are essential. In doing so, I shall be voting for the other place to reconsider and think again, although I have always acknowledged—and do again now—that the ultimate power rests at the other end of the Corridor. However, I have been persuaded this afternoon that this amendment is something that we do not have to do. Although I came into the Chamber rather thinking that I would abstain, which is an honourable course but not a comfortable one, I will not support this amendment, because I do not think that it is necessary or realistic. The powerful speeches which the House has heard this afternoon from those who are learned in the law do on balance, in my mind at least, outweigh for once—it is an unusual if not unique occasion—the forensic ability and marvellous eloquence of the noble Lord, Lord Pannick.

--- Later in debate ---

[Baroness Lister of Burtersett]

My Lords, the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Low, have made a strong case. I am perplexed as to what possible argument the Government could make against writing in the principle of non-regression of equality rights, given the numerous assurances they have given to us on their commitment to such rights and given that, as already explained, the amendment was modified to take account of objections raised by the Minister in Committee. I can only think that the Government want to retain some wriggle room for the future.

That suspicion was strengthened when I read in today’s i that the International Trade Secretary has pledged to cut bureaucracy and red tape to promote free trade post Brexit. As we have heard, the Red Tape Challenge removed some equality rights and would have removed even more if our membership of the European Union did not prevent it doing so. As the noble Lord, Lord Low, has pointed out, the Beecroft report, which was part of the Red Tape Challenge, repeatedly referred to the supposed constraints imposed by EU directives. Is it surprising that we are rather suspicious that when those constraints are removed, a future Government might wish to resile from some of these equality rights?

Finally, I will go back to something I have referred to more than once because I think it is so important. At Second Reading, the right reverend Prelate the Bishop of Leeds asked us,

“at the end of this process, what sort of Britain … do we want to inhabit?”.—[Official Report, 30/1/18; col. 1386.]

That is a question that we really must keep coming back to. For me, the principle of equality is absolutely central to the kind of Britain that I want to inhabit when we have—unfortunately—left the European Union.

[Lord Cashman]

My Lords, I added my name to this amendment but too late for it to be printed in the Marshalled List. I congratulate the noble and learned Lord, Lord Wallace of Tankerness, on the way he moved this extremely important amendment. He referred to our earlier discussions on the Charter of Fundamental Rights, when the House was nearly full, and this connects directly to that debate.

There are deep concerns, not only within the House but outside, among respected and established non-governmental organisations and, indeed, the Equality and Human Rights Commission. I would expect the Government to clutch this amendment with open hands and embrace it to their chest, but I have worked with the Minister in the European Parliament and I know that I am not about to see that happen—although, as my noble friend Lady Lister said, the amendment puts into words the assurances offered by the Government and Ministers.

As I said earlier, there are real, deep concerns that rights will be attacked once we leave the protection of the charter and the treaty establishing the European Union and the Treaty on the Functioning of the European Union. Most of these rights arise out of Article 13 of the treaty of Amsterdam, which gave the European Union a legal basis upon which to act on the grounds of race, ethnicity, religion, belief, age, disability or sexual orientation; gender was covered elsewhere. They define the very societies and countries in which we choose to live.

I look forward to the Minister replying and surprising me by saying that the Government take this amendment on board and will embrace it. If I am not surprised, I will return to this issue. Others outside the House will return to this issue. I believe that it defines the kind of country we want to be post Brexit. Now more than ever, we need to offer reassurances not merely within the two Chambers of this Palace but within the Bill.

[Lord Goldsmith]

My Lords, one of the privileges I had when I served as Attorney-General was to be able to see government proposals, to consider them, to see where they were compatible with our obligations and sometimes to use incompatibility as grounds for persuading Ministers not to go down a particular path.

In considering this amendment, it is important to understand what is meant by underpinning because it risks concealing the important proposition that there are certain things that the Government simply cannot do at the moment—nor can other Governments who are members of the EU—because of the commitments that have been made. A directive has to be complied with. We cannot override it overnight. In these circumstances, the noble and learned Lord, Lord Wallace of Tankerness, is right to raise this hugely important point: what will be the underpinning in the future?

European Union (Withdrawal) Bill

Lord Cashman Excerpts

Wednesday 7th March 2018 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I too rise to speak in support of Amendment 70A, which has just been moved by the noble and learned Lord, Lord Wallace of Tankerness, and spoken to by the noble Baroness, Lady Lister.

I apologise that I did not speak at Second Reading. My apology is in the same terms as that of the noble Lord, Lord Paddick, on the second day in Committee, who explained that he had taken the view that he was unlikely to be able to add anything new, bearing in mind the large number of speakers.

As we have heard from the last two speakers, the Government have strongly proclaimed their intention of maintaining existing equality protections once we leave the European Union. The proposed new clause contained in Amendment 70A provides the means of ensuring that this intention is fulfilled. It is thus in very much the same case as Amendment 66, which, as the noble Lord, Lord Deben, pointed out, does nothing more than what the Government want to ensure. It addresses concerns raised by the Women and Equalities Committee in another place, as we have heard—concerns that our exit from the European Union risks losing the entrenchment of our rights, provided by their under- pinning in EU law. To achieve this, the UK needs to replace the EU’s equality safety net with our own right to equality.

We in Britain are rightly proud that we have the strongest equality law in the world, which, in many areas, goes beyond what EU law requires. Yet some important protections—for example, for disabled people, who are naturally very close to my heart—as a result of the impact of EU law go beyond what we have been ready to do domestically. For example, the Coleman case in the European Court of Justice established that it is unlawful to discriminate against individuals because they care for a disabled person. When the underpinning of the EU law is taken away, there is a real risk that a future Government could seek to chip away at such protections. We have already seen this in the Red Tape Challenge under the coalition Government, when the existence of the EU safety net protected much of the Equality Act 2010, but we still saw provisions outside the EU directives being undermined. Many important protections in the Equality Acts could not have been changed at that time because they were part of EU law, as well as our own law. After Brexit, this will no longer be the case. Areas that some commentators have suggested may be at risk post Brexit even include aspects of equal pay legislation. This clause will set the equality standard against which new laws will be measured and make our courts the arbiter of equality compliance.

We have already heard what the Women and Equalities Committee stressed: ensuring that equality protections are maintained is not simply a matter of transposing existing EU law. To protect rights, the Government need to take active steps to embed equality into domestic law and policy. The proposed new clause specifically protects against disability discrimination and requires that a Minister must make a statement of compatibility when introducing new legislation. Specifically, this must include an undertaking that it does not discriminate on grounds of disability. This establishes an important mechanism for holding the Government to account in relation to new measures with a potential impact on disabled people. The clause also provides a mechanism for disabled people to challenge laws and actions taken by the state that have a discriminatory impact.

Sadly, it is all too true that the rights of disabled people need further protection in this way. For example, the High Court found, as recently as December of last year, that regulations determining entitlement to personal independence payment unlawfully discriminated against disabled people. The court held that the regulations were “blatantly discriminatory” against those with mental health impairments and that they were manifestly without reasonable foundation. In that case, the claimant was able to rely on her rights under the European Convention on Human Rights because she was able to show that the personal independence payment scheme falls within article 1 of the first protocol to the convention, which protects property rights. Therefore, the right not to suffer discrimination in the enjoyment of a convention right under article 14 of the convention was engaged. However, obtaining a remedy for such discrimination should not depend on whether the discrimination can be tied to a convention right. That is why a free-standing right to equality in UK law is needed, which is what the proposed new clause is intended to achieve.

[Lord Cashman (Lab)]

My Lords, I rise briefly to speak in favour of these amendments. I preface my remarks by saying that I agree absolutely with my noble friend Lady Lister of Burtersett. Human rights, fundamental freedoms and civil liberties define a country and its approach to civilisation. I remember 30 years ago looking on in horror as discrimination was visited on lesbians, gay men and bisexuals in this country by the then Conservative Government in Section 28 of the Local Government Act. That should remind us that there is never a continuous progressive line on equalities and human rights, and that we need to reinforce the protections that we have.

It is essential to guard against the excessive transfer of power from Parliament to the Executive and to ensure that any changes to fundamental rights and freedoms are subject to full parliamentary scrutiny. I believe that is a matter of constitutional principle, as I have said on many occasions in your Lordships’ House and it bears repetition.

New scrutiny procedures introduced in the other place do not address this concern. They provide a mechanism, in the form of a sifting committee, to recommend—I emphasise “to recommend”—that the affirmative scrutiny procedure be used. I look forward to the Minister’s confirmation that such a recommendation does not have to be accepted by the Minister. Furthermore, stronger safeguards are required in the Bill to exclude changes to equality and human rights from the scope of these delegated powers.

I turn to Amendment 70A, having dealt with the principles of Amendments 161, 259 and the others in this group. I congratulate the noble and learned Lord, Lord Wallace of Tankerness, on the way he introduced it, and the noble Lord, Lord Low, and my noble friend Lady Lister. Amendment 70A would introduce a new clause to ensure that the rights to equality presently enjoyed in accordance with EU law are enshrined in domestic law after the UK leaves the EU. Therefore, there is arguably no reason why the amendment should not be accepted. Indeed, for the Government to deliver on their commitment to non-regression on these rights, the UK needs to replace the EU’s equality safety net, referred to by the noble and learned Lord, with our own domestic right to equality. Amendment 70A would achieve this by setting a standard that all individuals are equal before the law and have a right not to be discriminated against by a public authority. For these reasons and many others, particularly the lessons of history, I support the amendment and others in the group.

[Baroness Whitaker (Lab)]

My Lords, I add my support to this group of amendments for all the reasons so eloquently set out by noble Lords. It would indeed be a retrograde step if the Government did not take advantage of these amendments to provide safeguards for our citizens.

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[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

The noble and learned Lord, Lord Wallace, will have the opportunity to respond to the question posed by my noble and learned friend Lord Mackay after I have set out the Government’s position.

I thank noble Lords for this brief debate on this extremely important subject. Amendment 70A, tabled by the noble and learned Lord, Lord Wallace of Tankerness, seeks to ensure a firm basis for equalities protections as we leave the EU. In that sense, and in response to the noble Baroness, Lady Hayter, I of course understand and sympathise with the motivation behind the amendment and recognise the noble and learned Lord’s interest, shared by many others on all sides of the Committee. Indeed, the noble Lord, Lord Adonis, tabled Amendments 101A, 133A, 161 and 259 —I thank him for his brevity in not addressing them—which seek to restrict the powers in Clause 7 from making any changes to equalities and human rights legislation.

However, as I will endeavour to set out for the benefit of the Committee, we believe that these amendments are unnecessary given our commitment to maintaining existing equality and human rights legislation and, more widely, to sustaining our strong track record in this area. Amendment 70A would in fact give rise to significant new rights—which is not, of course, the purpose of the Bill—and in all likelihood would raise difficult questions, as my noble and learned friend Lord Mackay indicated, regarding legal certainty.

The Government have already made clear our commitment that all the protections in and under the Equality Acts 2006 and 2010 and equivalent legislation in Northern Ireland will continue to apply once the UK has left the EU. This has been stated unequivocally on several occasions, including in the March 2017 White Paper that preceded the Bill, the equality analysis we published in July 2017, and in the government response of October 2017 to the Women and Equalities Select Committee’s report, Ensuring Strong Equalities Legislation after the EU Exit.

As further assurance, the Government tabled an amendment in the other place—now paragraph 22 of Schedule 7—that 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 in effect 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. We further confirmed in the other place that similar statements will be made in relation to other Brexit Bills. So we have clearly shown our commitment to maintaining the protections in our existing equality legislation, and ensuring that Brexit will not see the UK somehow regressing in this area. In contrast, Amendment 70A would go much further by creating new freestanding rights which would, indeed, apply in circumstances where the Charter of Fundamental Rights does not. Let me take a few moments to explain this in a little more detail.

First, subsection (3) of the new clause proposed by Amendment 70A takes an element from the Charter of Fundamental Rights, strips it of its original context and creates from it an exceptionally wide-ranging anti-discrimination duty. The effect of this is to go well beyond the requirements of the equivalent charter rights, which, as has been said, apply to member states only when they are acting within the scope of EU law, and well beyond the requirements of current domestic law. It would, for instance, introduce a legal duty on public bodies not to discriminate on grounds of language, property, birth or political opinion. That may sound reasonable on the face of it, but if we consider language for a moment, this duty could, for example, give all non-English speaking users of government services a right to claim discrimination if any of those services is available only in English and not in their own first language. This could ultimately mean that all public services would have to be provided in a very wide array of languages, at a substantial and disproportionate cost, which perhaps would even make some discretionary services unviable.

As many noble Lords will be aware, the key wording of subsection (3) of the new clause proposed by Amendment 70A originates in Article 14 of the European Convention on Human Rights. Again, I want to be very clear on this point: nothing in the Bill affects the Government’s ongoing commitment to the ECHR, which is, of course, given further effect in domestic law by the Human Rights Act 1998. Against this backdrop of clear commitments to the European Convention and to maintaining all the protections in and under the Equality Acts, I respectfully suggest that the concern expressed about the future of equality rights after we leave the EU and the assumption that new freestanding anti-discrimination rights are in some way needed to offset the impact of our exit is misplaced.

The Equality Act 2010 is the cornerstone of our equalities legislation. It covers all the requirements of the four existing EU equality directives but also goes much further. For example, our ground-breaking gender pay gap reporting requirements and our public sector equality duty have no equivalent in EU law. Also, there is no existing EU directive that prohibits, as our Equality Act does, discrimination by providers of goods or services because of age, disability, religion or belief and sexual orientation. We are proud of the UK’s track record on equalities and we do not need to be part of the EU to sustain that excellent record.

Subsection (2) of the new clause proposed by Amendment 70A seeks to establish a legal provision that everyone is equal before the law. However, that very principle is already reflected in the rule of law in the UK and is one of the longest-established fundamental principles of the UK’s constitution. The common law requires public authorities to act reasonably when exercising their powers, and this includes a requirement not to discriminate arbitrarily between different cases.

Finally, subsection (4) of the clause proposed by Amendment 70A would, albeit without directly amending the Human Rights Act 1998, have the effect of linking the new rights created by subsections (2) and (3) to the framework of key provisions in the 1998 Act. Again, with respect, I must say that I do not think that this is appropriate. We believe that it would create legal uncertainty and confusion, not least around the existing prohibition on discrimination under Article 14 of the ECHR, as set out in the Human Rights Act 1998. The bottom line is that substantive new rights are not consistent with the intended purpose of the Bill, which is about maintaining the same level of protection on the day after exit as before. It is not intended to be a vehicle for substantive legislative changes such as those proposed and so we cannot accept Amendment 70A, and I hope that the noble Lord feels able to withdraw it.

It is also to this end that, while we agree with and understand the honourable intentions behind the amendments of the noble Lord, Lord Adonis, we cannot accept them as the legislation that underpins these rights and protections will contain many provisions that will become deficient after our exit. Indeed, the response that the Government put out in October 2017 highlighted some of these deficiencies. For example, the Equality Act refers in several places to EU or to Community law. These references are likely to need to be replaced with the term, “retained EU law”. As such, we believe that it is essential that the Clause 7 power is able to address these deficiencies so that we can ensure that the legislation that safeguards these rights and protections can continue to function effectively—which is what I would have thought we all wanted to see. Without this ability, businesses and individuals may be vulnerable to the resultant gaps in the law, which would be counterintuitive to the intentions of the noble Lord.

Equally, it cannot be the intention of the noble Lord to prevent the Government remedying a breach of our existing international obligations using Clause 8. Both these clauses are subject to the same restrictions on amending the Human Rights Act and the same equalities transparency requirements. In relation to Clause 9, to which Amendment 161, also in the name of the noble Lord, Lord Adonis, refers, one of our clearest similarities with the EU is our shared historic belief in the values of peace, democracy, human rights and the rule of law. It is extremely difficult therefore to envisage that any withdrawal agreement we negotiate with the EU, and by extension the Clause 9 power to implement parts of that agreement, will somehow undermine human rights and equalities law. Rather perversely, Amendment 161 would actually prevent Clause 9 strengthening human rights or equality law on the basis of something agreed in the withdrawal agreement with that effect.

However, as I have already set out, Clause 9 is, like Clause 7(1) and Clause 8, explicitly prohibited from being used to amend, repeal or revoke the Human Rights Act or any subordinate legislation made under it. In the case of Clause 17, I reassure the Committee that these powers may be used only in consequence of, or in connection with, the coming into force of a provision of the Bill itself. We expect that any changes made to equalities or human rights legislation to deal with the provisions of the Bill will be to ensure that the changes caused by the Bill are properly reflected in the statute book and that there is smooth transition in the law. To continue to work effectively and appropriately, the statute book must be tidy. Case law and other legal authorities provide a narrow scope for Governments to exercise consequential and transitional powers of this type. As such, they cannot be used to make truly substantive changes to equalities or human rights legislation.

I hope that what I have been able to say has satisfied noble Lords that the Government remain committed to maintaining equalities and human rights protections throughout the process of leaving the EU and I hope that that will enable the noble Lord to withdraw the amendment.

[Lord Cashman]

Before the Minister sits down, I asked him a direct question about the sifting committee and whether the recommendations had to be accepted by the Minister. Perhaps he could address that question.

[Lord Callanan]

I think my noble friend the Leader will be setting out our proposals for the sifting committee in this House. I have not seen the details, but my understanding is that there will be recommendations to the Minister.

European Union (Withdrawal) Bill

Lord Cashman Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I am particularly pleased to follow the previous speaker. Perhaps that six minutes should be in my entry in the register of interests.

It has, for many reasons, been with mixed emotions that I have sat through this debate. One reason is that I wish the debate was not taking place. I wish that we were not preparing to leave the European Union, and not leaving on the whims, prejudices, and architecture of the Eurosceptic wing of the Conservative Party, aided and abetted by the right-wing press. But politics is not about wishing; it is about having the courage to take difficult decisions—not necessarily to follow public opinion, but to lead and fashion it, to challenge it and to offer other options. I believe that politics is about having the courage to be unpopular and to do what is in the long-term interests of your country. It is to put country before party or personal advancement.

Yet, sadly, the debate has barely moved on. The lack of knowledge about how the EU functions, and the role of member state Governments within it, is as shocking as it is depressing. Some would have us believe that Governments are dragged against their will into the European Union and the Council of Ministers, where they make their democratic decisions. Neither is there understanding of the role and duties of the European Commission, given to it by the treaties, or the directly elected European Parliament, in which I proudly served for 15 years. This is either ignorance or, perhaps, wilful misrepresentation.

The EU was born out of the ashes of the Second World War: the ashes of people’s hopes and dreams, and yes, the ashes from crematoria that were dotted across Europe. A group of countries came together to ensure that history would not repeat itself—that we would never turn away again. It is a European Union that has at its root and core fundamental human rights and freedoms that are non-negotiable, even on accession into it. It is a union of countries and peoples joined by common principles and a united purpose: never to look away again and allow countries or peoples to be scapegoated or sacrificed. It is this European Union that we now turn away from, as we seek isolation while fooling ourselves and our citizens that it makes us stronger.

I say to my own Front Bench in another place that out of the European Union was constructed the single market, which has equality and fairness at its root and core, and that we should maintain our membership of that single market. But we are where we are. The country is divided and people feel left out, isolated and unwanted. EU citizens living here feel under threat, their futures and their children’s futures insecure in a country that they thought they could call home and where they could play by the same rules, abide by the same laws, and remain safe and welcome. How shamefully we have treated them and our citizens who live in other parts of the European Union.

Where once we served as a beacon of hope, fairness and decency, we are now viewed in a very different light. The glow has gone and this sceptred isle fumes with a narrow nationalism, promoted and stoked by the right-wing press—particularly the Daily Mail, with its threats and attacks upon any who dare in a democracy to think or vote other than the way that the Daily Mail or the Daily Telegraph believe that we should. Is it traitorous to pursue what you believe to be in the best interests of your country? Or is it traitorous to abandon your principles and your country, and surrender to threats from those who wield power without responsibility or accountability? Where is parliamentary sovereignty, when attacks are heaped on parliamentarians for exercising their democratic rights in Parliament? We live in strange times.

Many noble and learned Lords have spoken of the deficiencies in the Bill. Organisations such as Liberty, Amnesty, the Fawcett Society and so many more have given their recommendations and shared their concerns, especially around the issues of equalities, human rights and the dilution of democracy. I share their views. In the debate in my name in your Lordships’ House on 12 December, I posed questions to the Minister on human rights post Brexit. I was not reassured by the replies, either during the debate or in subsequent correspondence.

I want now to refer particularly to the recommendations that came from the Equality and Human Rights Commission. On the withdrawal Bill, it advises that we retain the UK’s equality and human rights legal framework as we leave the EU by including within the Bill the following. First, we should rule out the use of delegated powers to reduce equality and human rights protections. Secondly, we should include a principle of non-regression of equality and human rights law. Thirdly, we should retain the protections of the European Charter of Fundamental Rights. Fourthly, we should introduce a domestic right to equality. Fifthly, we should ensure that the United Kingdom keeps pace with developments in equality and human rights law by ensuring that our courts have regard to relevant EU case law after exit day.

In light of the Bill's twin aims of ensuring legal certainty and continuity, removing the charter and the right of action based on the general principles is wholly inappropriate. The charter secures important rights, as others have said: education, protection of the elderly, and equality rights—including, I say as a gay man, LGBT rights—which could be seriously undermined, as well as the principle of non-discrimination. The Bill must be improved, especially with regard to the charter and the equalities that currently exist. If the Government’s intentions are honourable then they should put the protections I have outlined on the face of the Bill, and not in worthless reassurances or in a committee which, to quote a Minister in correspondence, is merely advisory. The noble Lord, Lord Howell, spoke earlier about ambitions. My ambition is simple: the protection of rights that have been fought for across generations—and fought against—and which define a civilised country.

Brexit: Equalities Impact Assessment

Lord Cashman Excerpts

Thursday 21st December 2017 Lords Chamber

[Lord Callanan]

I thank the noble Baroness for her interest in this very important issue. We take our responsibilities in this area very seriously. Of course, we do not need to be part of the EU or be bound by EU legislation to have strong equalities protection. For example, our protections against discrimination, harassment and victimisation in the provision of goods and services to disabled people all go beyond EU law. We will continue to take our obligations in this area very seriously, and the noble Baroness need not fear.

[Lord Cashman (Lab)]

There is widespread concern about the possible dilution of rights post Brexit. Therefore, will the Minister assure the House that there will be no regression of equalities and human rights, and that, should any changes be necessary, they will be addressed solely through primary legislation?

[Lord Callanan]

I know that the noble Lord takes a close interest in these areas. We are very proud of our record on equalities protection. One reason for leaving the EU is to take back control of our laws. Of course, there will always be a full discussion in this Parliament if we have any plans to go further on equalities protection, but at the moment I am not aware of any.

UK and EU Relations

Lord Cashman Excerpts

Tuesday 12th September 2017 Lords Chamber

[Lord Cashman (Lab)]

My Lords, not for the first time am I delighted to follow the noble Lord, Lord Framlingham, and give a completely different perspective. As someone who voted to remain in the EU, I assure him that I will certainly not finally bow on what I believe was a wrong decision that does not serve the future of this country.

In recent weeks, there has been much speculation about a Brexit transition agreement. Sadly, the position papers—or “shifting position” papers, as I call them—have not helped matters. There is now greater uncertainty, not less. Where there should be clarity on the Government’s position and intention, there is only confusion—especially within the negotiating chamber in Brussels. I have to admit that there seems to be confusion too within my own party on where we want to be post Brexit, but I look forward to a speedy resolution.

I voted to remain. I oppose Brexit, as is my democratic right, and believe that we must maintain membership of the single market and the customs union at the very least, even if it is along the Norwegian model. Anything else would be national suicide as we throw away the rights fought for by previous generations, such as my father and grandfather, who fought in two world wars for a united Europe—for a Britain in solidarity with Europe, not isolated and aside from Europe. We would be throwing away, too, the rights of younger generations and generations yet to come.

There are over 3 million EU citizens in this country who face a starkly uncertain future. Everything is no longer certain: their homes; the education of their children; learning and life choices for their families; their employment and retirement prospects; indeed, their very right to reside in a country that they have lived and worked in and where they have played by the rules. Instead of offering those people certainty, the Government use them as cheap bargaining chips in shoddy negotiations. It is entirely unacceptable.

We cannot even negotiate to offer certainty to British citizens living and working in the EU 27. The emails and messages I have received are truly heartrending: people who have married other EU nationals and raised their families in a country where they thought they were welcome and wanted, only to find that they are now feared by some, resented by others and misrepresented elsewhere. In that regard, elements of the British press have played a despicable and reprehensible part.

Let me come to some facts about where we are from two surveys. London First and the Lloyds Banking Group have worked together on a UK-wide survey of over 1,000 businesses, both large and small. They found that over half of businesses have faced a negative impact from Brexit. They have been forced to put investment and recruitment decisions on hold and to revise their supply chains. They are seeing reduced demand for products and services. Some 40% of UK businesses believe a transitional agreement will have a positive impact, enabling them to unblock investment or recruitment decisions. Those businesses that see a transition agreement as having a positive impact want to see an agreement that covers all the elements of the existing EU relationships, including freedom of goods, services, capital, talent—yes, that means people—a common set of tariffs and EU legal arrangements. For those businesses, continued access to the people they need is their number one concern; they call for the Government to give a unilateral, unconditional guarantee to the EU citizens already living and working in the UK, and to set out plans for a fair and managed approach to future immigration policy—a call I am sure every decent person would endorse.

In another survey, Focus on Labour Exploitation—FLEX—and the Labour Exploitation Advisory Group explore how migrant worker vulnerability to exploitation has been affected by the UK referendum. Sadly, they highlight uncertainties creating conditions for vulnerability. There is a rise in hate crime and hostility post referendum that contributes to a general sense of being unwelcome and makes migrant workers feel like second-class citizens in the UK.

These are the human consequences of Brexit. We must keep these people and their families and their deep and all-consuming concerns at the forefront of our minds in all our deliberations and negotiations. In the Brexit negotiations, now more than ever before, we need leadership allied with courage, imagination, flair and daring. Sadly, as I look out across the Brexit horizon, I see none.

European Union (Notification of Withdrawal) Bill

Lord Cashman Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I will make just a couple of simple points because I can see that the House is ready to hear from the Front Benches. I want to pick up on a phrase that my noble friend Lord Hailsham used, although I disagree with him and his amendment. He talked about there being a price to pay. What we have to reflect on as a House is that if we support these amendments, particularly an amendment which gives us power ultimately to overturn the referendum result, there is a price that comes with that, too. We have to decide what is most important to us. Do we want to influence the Prime Minister as she goes into these negotiations, or do we want to say now that we want the power to overturn the referendum result? As I said in Committee, I feel very strongly that among people in both Houses—and policymakers and leading businesspeople outside—there is a lot of expertise and experience that needs to be heard by the Prime Minister and the Government over the next two years and needs to be influential in the negotiation period. I worry that we will start to undermine the right for us to be heard in that way.

I will say one final thing. The noble Lord, Lord Turner, referred to some of us as tribal party politicians. Somebody else mentioned that this morning. We have to reflect very carefully on what has changed since the referendum and on how we are seen by the electorate. I do not think they see us in party terms in the same way they used to. There are two clear sets of politicians whom people consider and listen to: those they feel understand them, and those they feel are against them. I know that most of those who are participating in these debates and working very hard to get the best result for this Brexit deal are not against the people, but we need to understand that they think we are. We have to reflect on what it is we need to do differently. That is why I caution against supporting these amendments which give Parliament power—not just this House, not just the other House, but Parliament. I urge noble Lords to really reflect on that.

[Lord Cashman (Lab)]

Does the noble Baroness agree with me that we should not ditch the principles of this House in order to please or pander to public opinion?

[Lord Naseby]

My Lords—

European Union (Notification of Withdrawal) Bill

Lord Cashman Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Tebbit]

My Lords, people of nationalities of other countries within the union are foreigners.

[Lord Cashman (Lab)]

Will the noble Lord develop the argument about protecting the rights of UK citizens a little further? What would he say to a UK citizen married, perhaps, to a German or Dutch national and now worried about their right to remain, to work and to live in this country?

[Lord Tebbit]

That is exactly what the Prime Minister has said: we will look for an equitable solution. That means, in my view, that the rights of those who are currently resident here who, although they are not British subjects, are citizens of the EU, should be kept. But, of course, so should the rights of British citizens living within the EU. That is not a difficult matter. Why is everybody here today so excited about an amendment that looks after foreigners and not the British?