Safety of Rwanda (Asylum and Immigration) Bill

Lord Cashman Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will speak only once today, as I did on Monday. The Greens will vote for all the amendments that are called. Some Members of your Lordships’ House quoted the book Nineteen Eighty-Four on Monday, and I have a favourite quote as well:

“Freedom is the freedom to say that two plus two make four”.


It is the freedom to speak truth, even when the ruling party is declaring otherwise.

That is what we are debating today. We are debating whether this authoritarian Government can declare that the objective truth of facts decided by the courts can be overruled. If we allow it, it is another big step towards a dictatorship—intentional or not. I know that the majority of people in your Lordships’ House know that the Government are wrong. I also know that many still cling to the belief that the House of Lords should not vote to stop the Government passing the most draconian of laws.

What are we going to do once we have voted on our amendments, and tried to do our job of improving the Bill, when the Government then ignore us? Will we do nothing again? We did nothing last year when a Minister overruled a vote in this House and gave the police draconian powers via a ministerial decree. It was the first time a Minister had ever used a statutory instrument to overturn a vote in this House, but the Labour Party failed to back my fatal amendment. I look forward to being told that that piece of legislation is going to be repealed as well.

We are paid more than £300 per day to come here and talk and vote, but what is the point of all our hard work if the Government ignore us? Either your Lordships’ House starts to act in defence of our liberal democracy and against the extremists at the heart of government, or we abolish this place and create an elected second Chamber with some backbone. I look forward to more defeats for the Government in these votes.

[Lord Cashman (Lab)]

My Lords, I support this amendment because it encapsulates the principle introduced by the noble and learned Lord, Lord Etherton, and me in amendments on Monday, which we subsequently withdrew and did not move. My noble friend Lady Chakrabarti referred to an article by Joanna Cherry in the Times. I want to quote from it, because on Monday we on this side of the House were assured by others on the opposite side that everything was well and rosy and good in the garden of Rwanda in relation to minorities, particularly LGBT minorities:

“Last week I led a delegation of the Joint Committee on Human Rights to Kigali, the capital of Rwanda. The committee will report on our visit … but in my personal opinion the UK government’s insistence that Rwanda is now a safe country for asylum seekers is a legal fiction … On LGBT rights, I think Rwanda is where Britain was 50 years ago … According to NGOs we met, LGBT people face stigmatisation and discrimination in what is quite a conservative society”.


That chimes absolutely with the evidence I presented to the House from NGO LGBT activists in Rwanda.

[Lord German (LD)]

My Lords, we on these Benches agree that decision-makers and our domestic courts and tribunals are able to properly consider whether Rwanda is safe for an individual or a group of persons. This amendment would restore the proper jurisdiction of our courts and enable them to grant interim relief to claimants, preventing their removal to Rwanda until their cases had been properly considered. Where the considerations involve risk to life or inhuman or degrading treatment, it is critical that cases can be fully and properly considered before an individual is removed. We also support the ability of decision-makers to consider the risks to a group as well as to an individual, and refer, of course, to the matters raised on day 1 of Report.

--- Later in debate ---

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I was not on the visit to Rwanda with the committee, but I looked at all the notes that were taken, and I want to make it clear that, while the constitution of Rwanda provides remedies for those who have suffered discrimination, the problem is that no cases have ever been brought using that part of the constitution. To say that there are well-established principles and well-established methods to protect individuals has not been tested in the courts—and the opinion of others who were approached was that the place was not safe. Noble Lords heard that from the noble Baroness, Lady Lawrence, on Monday. Unfortunately, when noble Lords say that it depends on how one approaches these things, I am afraid that it does—it depends on whether one has an open mind and listens clearly or does not.

[Lord Cashman (Lab)]

For the record, the Foreign Office travel advice for Rwanda was:

“LGBT individuals can experience discrimination and abuse, including from local authorities. There are no specific anti-discrimination laws that protect LGBT individuals”.


In that instance, I wonder why the UK Government give refuge and asylum to LBGT people from Rwanda.

[Baroness Lawrence of Clarendon (Lab)]

My Lords, I, too, went to Rwanda with the noble Lord and, yes, the constitution talks about LGBT rights—but the difference is that those individuals cannot protest, march or make themselves known out in public. That was what they said to us. I spoke to people individually, and that was the information that I received—that it is not safe for LGBT people.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Cashman Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

In order to be consistent in their policy, and to avoid a head-on clash with domestic and international law, the Government need to reconsider their approach, both generally in relation to refugees who have a well-founded fear of persecution by virtue of being members of a particular social group and, more particularly, in relation to LGBTQI+ people who wish to live openly as such. I beg to move.

[Lord Cashman (Lab)]

My Lords, I am in favour of the amendments in this group, including that in the name of my noble friend Lord Dubs, who cannot be in his place. I have added my name to those in the name of the noble and learned Lord, Lord Etherton, and I thank him for so powerfully putting the case for the amendments. I too received the letter from the Minister, the noble Lord, Lord Sharpe, and will refer to it in my submission.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Cashman Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

The attitude to evidence in the Bill indicates that there is no true concern for the safety of anyone who falls under its remit, and the Bill is to facilitate the transportation of people no matter the implications for the law, morality or truth.

[Lord Cashman (Lab)]

My Lords, I rise briefly to support the amendments in this group, which seem eminently sensible—that is probably why the Government will reject them. I also support particularly Amendment 30, to which I have added my name. I am not going to go over the points raised by my noble friend Lady Lister, who has outlined the reasons for the importance of this amendment extremely well.

There have been consistent reports of torture being used in Rwanda, by both the military and the police. The United Nations has concluded that Rwanda does not have in place the necessary safeguards against torture or the structures to respond to it. Recent reports also confirm that torture persists in Rwanda, along with continued risks of refoulement to third countries. It is clear in those reports that Rwanda does not have in place safeguards against torture, or an effective process for responding to the allegations of torture. There is a long list of cases and reports set out by the eminent organisation Redress, and I note them for the record in Hansard.

At the UN Human Rights Council universal periodic review of Rwanda in January 2021, as has been cited by my noble friend Lady Lister, the United Kingdom Government criticised Rwanda for

“extrajudicial killings, death in custody, enforced disappearances and torture”.

I ask the Minister: what has been the miraculous turnaround in the past three years?

[Lord McDonald of Salford (CB)]

My Lords, I support the case put by the noble Lord, Lord Cashman, and ask about a current torture case concerning a journalist called Dieudonné Niyonsenga. Last month he appeared in a court in Kigali on appeal; he was sentenced three years ago to seven years in prison. He appeared in court with a wound in his head and he claimed, in that hearing, that he had been tortured. His case has been taken up by the Committee to Protect Journalists. This is not something theoretical or in the past; it is happening right now.

Illegal Migration Bill

Lord Cashman Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[The Lord Bishop of Manchester]

My Lords, we cannot countenance a situation in which people who sought asylum here because of a well-founded fear of persecution in their country of origin are then removed to a third country where they may face a similar, or even greater, level of risk. For that reason, I join others in supporting Amendment 37.

It was my privilege earlier this year to be invited to attend a reception on the Parliamentary Estate, where I met a group of LGBTQI+ women who had sought and gained asylum in this country. Their stories were harrowing. By contrast, their efforts to rebuild their lives here in Britain were inspirational.

It seems to me beyond any doubt that the threshold of safety must be different and, indeed, higher for people like these women—people who are persecuted on the basis of their sexuality or their gender identity. Putting it bluntly, if His Majesty’s Government’s travel advice to British tourists is that they should not be open about their sexuality when visiting certain countries, two things surely follow. First, those same countries are not places to which we should remove LGBTQI+ people; secondly, the Bill must provide explicit protection to that end. The noble and learned Lord’s amendment achieves that aim, and unless the Minister can offer equally concrete protections, I hope that your Lordships’ House will support it at such time as the voting machines are resurrected from the dead.

[Lord Cashman (Lab)]

My Lords, I speak in support of the amendments in this group, particularly the amendment to which I have added my name and which the noble and learned Lord, Lord Etherton, so eloquently expounded, as did the noble and learned Baroness, Lady Butler-Sloss. We have of course addressed, and will continue to address, vulnerable people in all the categories affected by the Bill. We have done so consistently—for example, for pregnant women and vulnerable children, as we have done today, and for others. When it comes to protecting the vulnerable, that is arguably how a country is judged, so we make no omission when dealing with Schedule 1.

As was said earlier—I will be brief—there are 63 countries that currently criminalise people merely because of their sexual orientation or gender identity. In a country such as Uganda, for example, for you to know that somebody is in a SOGI minority, as the UN refers to it, and not to report it to the authorities is to face two years in prison. If in Uganda you rent a home to a homosexual person, you can face up to 20 years in prison. Some 63 countries criminalise; now seven have the death penalty. The reality of state discrimination, as has been said, is death, mutilation, persecution, blackmail and coercive rape. I remember David Kato, the Ugandan activist murdered some nine or 10 years ago; his murderer has still not been brought to justice. Lives are being denied, blighted and criminalised.

We raise this issue because within Schedule 1 the majority of those countries that criminalise and offer the death penalty are on the list and there are currently no protections. We have sought reassurances throughout—at Second Reading, in Committee and now—but reassurances there have come none.

Let me finish with the words of a young Ugandan, Arthur Kayima, who said this, yesterday, here in Parliament:

“Without a Mother I grew up as a very vulnerable child and as if that was not enough, as a child, signs of not being straight were just too visible”.


Growing up in a country like Uganda, he said, being considered gay is to be considered evil—

“a curse, an abomination and a dangerously unforgiven sin”.

He continued that the President of Uganda, Museveni,

“signed into law the world’s harshest anti-LGBT+ law, which allows the death penalty for homosexual acts, long serving in prison for promoting homosexuality or renting a room to a gay couple (20 years in prison)”.

Without any reassurances, Uganda is on the list in Schedule 1.

That is the reality of being in a country with homophobic laws: those words, spoken by a man seeking asylum in the United Kingdom. No LGBT person should be sent to such a country, and that is one of the many reasons why I support Amendment 37, in the name of the noble and learned Lord, Lord Etherton.

[Lord Coaker (Lab)]

My Lords, I will briefly remind the House why this set of amendments is extremely important. I particularly support Amendment 37.

The thing to remember—I remind us all—is that the Bill automatically detains everybody who arrives irregularly. All those who arrive irregularly and are detained will then, at some point, as far as the Government are concerned—although this is unclear—be deported. There will be thousands upon thousands of people detained and then deported.

The amendments are extremely important, therefore, because if we are saying that thousands upon thousands of people are to be automatically detained and then deported, is there not a responsibility to ensure that the places where those people are to be deported to are safe? This puts an increased burden upon us to ensure that that is the case. As it stands, the Government will reply by saying that Clause 5(5) refers to “exceptional circumstances”, and that therefore there is no need for the worries and concerns expressed by a number of noble Lords, including the noble and learned Baroness, Lady Butler-Sloss, because if anybody faced deportation to a country which was not safe, the exceptional circumstances would protect them.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, the Government Front Bench will reflect, as your Lordships would expect, on submissions made on the Floor of the House at this stage. With respect to the noble Lord, I will defer my consideration of that point until later in my submission and will take matters in a different order. I will return to that point.

[Lord Cashman (Lab)]

My Lords, I accept the principle of non-refoulement to a country—a Ugandan going back to Uganda—but there is the wider issue of a gay Ugandan being sent to a country such as Gambia or Kenya. I seek reassurances on that.

Humanist Marriages

Lord Cashman Excerpts

Monday 25th April 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, humanists advance a position as a belief system, as opposed to the simple negation of religious faith. We are advised that establishing a further category of wedding based on a belief system would be a profound change to the laws that bear on weddings. As a result, we are obliged to wait until the Law Commission has reported.

[Lord Cashman (Lab)]

My Lords, I refer to my registered interests and ask the Minister a simple question: does he believe that the lack of legally recognised humanist marriages is unfair and discriminatory? If he does not agree that it is unfair and discriminatory, why not?

[Lord Stewart of Dirleton (Con)]

My Lords, if the question is directed to the department that I represent from the Dispatch Box today, there is no question of consideration of a belief that any such discrimination is unfair. If it is directed to me, I decline to answer.

On the former point, as I said in answer to previous questions, there is an outstanding Law Commission report. There is a High Court decision which considered that the Government were correct and acting appropriately in awaiting the position from which a more fundamental reform could be properly considered.

Nationality and Borders Bill

Lord Cashman Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support this group of amendments; I have signed only one, simply because I am not terribly well organised. I agree with the comments about Theresa May, whom I admired for many things, including the fact that she gave me a colleague in this House; it was six long, lonely years without my noble friend Lady Bennett.

An Urgent Question was left off the Order Paper today. It was put in the other place by the honourable Member for Brighton Pavilion, Caroline Lucas, who is the Green Party MP. Either me or my noble friend Lady Bennett would have liked to have contributed to that debate. I should like an explanation from the Government as to why it was left off the Order Paper. I am a great believer in cock-up rather than conspiracy, but I would like an explanation at some point and have chosen to put it into Hansard for that reason.

I return to this “shaming” part of the Bill, as the noble Baroness, Lady Hamwee, described it. Every time I think we have got to the worst part, I turn a page and it is even worse. The combined resources of this House will make this a difficult section for the Government to push through.

Noble Lords have spoken from a depth of understanding and experience that I probably do not have. Evidence is evidence wherever it is uncovered, and delays in producing evidence might be considered when weighing up the quality and value of such evidence. Essentially, the Government are making this an absolute requirement, which is unfair and unjust.

We are talking about the incredibly distressing circumstances of many of these people. We have already had examples. They are victims of slavery. They have possibly been groomed, tricked or kidnapped and brought to the UK. Instead of helping them or demonstrating even an ounce of compassion, this Government are treating them all as if they have done something wrong. I urge the Government to rethink this. I would hate to see another 14 votes go against the Government in one evening but, on the other hand, that was great fun and we could probably do it again.

[Lord Cashman (Lab)]

My Lords, I shall speak briefly, because I was not intending to speak. I want first to congratulate my noble friend Lord Coaker on the way he introduced these amendments. I support the amendments and particularly what has been said in relation to victims of modern slavery.

I think I can rely on history to reinforce this, and I ask the noble Lord, Lord Wolfson of Tredegar, to listen carefully. History shows us that when each of us experiences appalling discrimination and persecution, that pain and that shame are buried for decades. To revisit that sometimes takes us to an area that we never want to be in again. Therefore, with that thought, I urge the Government to think again.

[Baroness Meacher (CB)]

My Lords, I support the noble Lord, Lord Coaker, in his intention to oppose Clauses 57 and 58 standing part of the Bill. I have a speech but I am not going to deliver it, because the arguments of the noble Lord, Lord Coaker, in particular, the noble and learned Baroness, Lady Butler-Sloss, and many others have been so powerfully put that they are simply irrefutable. I have been in the House now for 15 years or so and have heard thousands of good arguments as to why a Government should not do this, that or the other, but I have never heard such powerful arguments for a part of a Bill to be removed.

I am going to ask something that I have never asked before. Will the Minister invite the Home Secretary to come to a meeting with representatives from all sides of this House to hear the arguments first-hand from the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Coaker, and others? It is not good enough for our poor Minister, if I may refer to the noble Lord, Lord Wolfson, in that way, to hear all these arguments, to go back and say whatever he is going to say—I do not know what it will be—and then to have to come back here and say, “Sorry, guys, it’s all going to stay there”. That is not good enough. The case is so incredibly powerful. The wickedness of Part 5 should not be allowed to go by without the Home Secretary facing noble Lords directly.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Cashman Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Morrow (DUP)]

My Lords, I congratulate the noble Lord, Lord Shinkwin, on his excellent speech. I think he has captured it all here this evening, and I put on the record my appreciation of what he said.

I shall speak to Amendments 16, 10 and 11. I begin by responding to the amendments tabled by the noble Lord, Lord Adonis. I shall first touch briefly on the effect of each before reflecting on their immediate implication and then on their broader constitutional consequence. If the departments were advised not to enforce Sections 58 and 59 of the Offences Against the Person Act, it would allow abortion for absolutely any reason up until 28 weeks’ gestation. It would propel Northern Ireland from a place where it has the highest abortion legislation in the British Isles to having the loosest. In supporting this measure, parliamentarians from England, Scotland and Wales would be thrusting on Northern Ireland a far more liberal abortion law than they think appropriate for themselves. There is simply no justification whatever for this approach.

Setting aside the fact that no declaration of incompatibility was made by the Supreme Court in June—and that even if it had been, it would not have changed the law—the only criticism in the obiter comments was in relation to abortion in two very narrow contexts: first, when a baby is so severely disabled that there is a likelihood that it will die in the womb, will not survive birth or will die soon after; and, secondly, when a baby has the misfortune that the father was a rapist. This would not justify anything remotely resembling not enforcing Sections 58 and 59. Indeed, adopting such a course would be diametrically opposed to the statement by the court that Northern Ireland’s abortion law—Sections 58 and 59—is human rights compliant in prohibiting abortion on the basis of severe malformation.

The amendment is also deeply problematic because of the way in which it would expose people to the risk of prosecution. In the first instance, where these amendments would direct departments not to enforce the law, the law would remain in place. The Secretary of State would effectively be directing departments to make people aware that the law would not be enforced by them—which is likely to result in some people feeling more at liberty to break the law. This, however, would not stop private prosecutions. It is not right that we ask the Secretary of State to put officials in a position where they send out messages that are likely to result in some people breaking the law, thinking they will not end up in court when they will. This would be monstrous.

Amendment 11 is also deeply problematic. If the hope is that officials enforce Article 15 of the Matrimonial Causes (Northern Ireland) Order 1978, the amendment is misconceived. That piece of legislation relates to the conduct of judges, not departmental officials. If the hope is that officials will enforce Article 15 of the order by directing judges, that also will not work because it would contradict the principle that the judiciary is independent and not instructed by the Executive.

There is an even more profound difficulty with both amendments and their attempt to encourage the Executive to dispense with enforcement of the law. In examining them both, one cannot help but think of that very formative period in our history that, arguably, has done more than anything else to give us the constitutional system of government that we enjoy today. The Glorious Revolution was, in part, a response to the tendency of James II to dispense with the enforcement of laws—laws that remain on the statute book. His actions created a constitutional crisis that provoked the Glorious Revolution.

I know that the parallels are not exact. The noble Lord, Lord Adonis, is not a king: nor does he claim to be. He is raising this as a parliamentarian and suggesting that Parliament takes this step. However, I feel deeply uncomfortable about the idea of Parliament sanctioning one law to undermine another one that remains on the statute book. There is a real sense in which effectively he is asking Parliament for permission to overthrow the sovereignty of Parliament. This request is wrong-headed, and acceding to it would be destructive of our laws.

I support Amendment 16, in the name of the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Loan. It seems to me that Clause 4 is one of the most problematic provisions in the Bill. Although those who secured the inclusion of Clause 4 believe that Northern Ireland’s abortion law has been declared incompatible with human rights, no such declaration has been made. Even if a declaration of incompatibility had been made, it seems that the champions of Clause 4 have completely misunderstood what it means. When a declaration of incompatibility is made, the law is not changed and does not have to change. This point is made absolutely clear by Section 4(6) of the Human Rights Act 1998. The fact that, constitutionally, a declaration of incompatibility brings with it no imperative for legal change is set out very clearly by the noble and learned Baroness, Lady Hale, in paragraph 39 of her judgment in the recent Northern Ireland Supreme Court case back in June.

I now turn to examine some of the specific problems with the understanding of how the declaration of incompatibility applies in the context cited by Clause 4. The first specific example of incompatibility is set out in paragraph (a). This statement is problematic for two reasons. First, as I have already noted, no declaration of incompatibility was made; and secondly, again as already noted, the majority of the noble and learned Baroness’s commentary in the Supreme Court judgment also questioned the balance struck by the law in Northern Ireland in two very narrow contexts—foetal abnormality and rape. The commentary did not provide any justification for suggesting a general problem with Sections 58 and 59 of the Offences against the Person Act. Repealing Sections 58 and 59 would result not simply in adjusting the balance of rights in relation to those two specific contexts, but instead would permit abortion on demand for any reason up to 28 weeks’ gestation. The idea that the majority of her commentary suggests a problem with Sections 58 and 59 of the Offences against the Person Act per se is extraordinary. Subsection (1)(b) is equally confusing.

It is plain wrong to suggest that the Supreme Court has identified any human rights problem with Article 6(6)(e) of the Marriage (Northern Ireland) Order 2003. There is a challenge to that provision before the Northern Ireland Court of Appeal, the case having already been rejected by the High Court. To date, however, the definition of marriage has not been considered by the Supreme Court.

Having considered the immediate problems with both provisions, I now turn to the wider constitutional point. It cannot be right to require the Secretary of State to produce guidance for officials that has the potential to critique or undermine existing legislation. The only guidance that it would be proper for the Secretary of State to provide, mindful of Section 4(6) and Section 6 of the Human Rights Act, is guidance that upholds current primary legislation unless and until it changes. For the Secretary of State to do anything else would undermine the rule of law.

Mindful of this I have asked the Minister for an assurance that any guidance issued under Clause 4 will make plain, first, that even binding declarations of incompatibility do not have the effect of changing the law or of creating a legal imperative requiring the law to be changed in line with Section 4(6) of the Human Rights Act; and secondly, that no convention right can negate contrary to domestic legislative obligations in line with Section 6 of the Human Rights Act. Unless and until such a time as the law is changed, any guidance provided by the Secretary of State must require officials to uphold that law as it stands.

[Lord Cashman (Lab)]

My Lords, I speak in favour of the principles outlined by my noble friend Lord Adonis in Amendments 10 and 11, and against Amendment 16. I will be very brief indeed. Basically I am speaking in defence of Clause 4 because I believe that I have listened to a misrepresentation of that clause. For me it is as simple as this: the women of Northern Ireland and the lesbian, gay and bisexual people of Northern Ireland should be afforded exactly the same rights and opportunities as other citizens across the rest of the United Kingdom, and no one should face discrimination based on where they were born or where they now live. For those reasons, I support my noble friend’s amendments, but particularly Clause 4 as it stands.

Northern Ireland: Supreme Court Ruling

Lord Cashman Excerpts

Thursday 7th June 2018 Lords Chamber

[Lord Duncan of Springbank]

The simple answer to the noble and learned Lord is yes.

[Lord Cashman (Lab)]

My Lords, human rights and our international obligations under human rights conventions are not a devolved issue. I therefore reiterate the point made by my noble friend Lady Smith of Basildon: it is imperative that the Government set out a timetable to re-establish devolved government. In the absence of meeting such a timetable, will the Government stop kicking the can of the human rights of women and others in Northern Ireland down the line in the hope that someone else will solve a problem that seems intractable?

[Lord Duncan of Springbank]

The can cannot be kicked down the road for ever. A solution needs to be found. We desperately and dearly hope that that solution is found by a new Executive recognising their responsibilities to deliver for the women and girls of Northern Ireland.

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.

European Union (Withdrawal) Bill

Lord Cashman Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

Moved by

[Lord Cashman]

22: After the new clause, at end insert—
“( ) human rights protection.”

[Lord Cashman (Lab)]

This amendment is in my name and that of my noble friend Lady Kennedy. I agree wholeheartedly with what has just been said by my noble friend Lady Hayter. It seems to me we need the protections on the listed exclusions not least because the Government are intent, following Monday evening, on not retaining the Charter of Fundamental Rights or the right of action on the general principles of EU law. My noble friend Lady Kennedy and I merely want to make the important and explicit amendment that “human rights protection” is included. I feel there is no need for me to say any more than that.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I support the noble Baroness, Lady Hayter, on Amendment 21. I do not intend in my remarks to spend a lot of time with the actual list at the bottom of the amendment, because she put across very well the need to protect in particular certain things which do credit to this country and which will give us advantages in the future, whatever the status of this country is.

I certainly felt my optimism rising today as I heard the reactions of my noble and learned friend the Minister to the whole question of how EU retained law will be protected in future. He seemed to be suggesting at one point that there might be some sort of hybrid approach. I am not sure what that might result in, but in the meantime we are in a situation where, as I am sure noble Lords are aware, the law, however it is made, comes in various forms. It comes in various packages, some of which are packages of principle of law, while other parts of the packages are the levers or the actual technical means by which laws are implemented.

That is why the amendment specifically states that primary legislation should of course be the main means by which any modification could take place, but also that subordinate legislation would be appropriate in certain cases to deal with technical areas that are not appropriate for a primary approach. Indeed, it is very sensible that even subordinate legislation be dealt with in a manner that allows it to have the support and security afforded to the principal legislation itself. I think there are certain doubts—to say the least—about the list of retained EU law. We have had several debates today and previously about what is actually meant by retained EU law, and we need greater clarity as to precisely what components make up this category.

There was a debate in another place on a very similar area and amendment. It was a very strong debate, to which a considerable number of people contributed, and real concerns were expressed about the way in which retained EU law, however it is finally listed, could be supported. As I said, I will not spend any time on the main areas that have been listed, but the Government have given many assurances—which I welcome—that the main areas of retained law will be specially protected and that they regard them as terribly important. That is only being affected, in a negative sense, by remarks from legislators who in the main do not form part of our Government but who nevertheless have been making statements indicating that, almost with immediate effect from its arrival, the retained EU law will be either tampered with or destroyed. That has meant that a considerable number of people currently affected by the law are seriously worried about what might happen to those areas that are so important to our public and social life. The reasons for this amendment are to make sure that the Government are aware of the concerns and to ask them to do their best to put in place the security necessary to protect these areas on an ongoing basis. I support the amendment.

--- Later in debate ---

[Lord Faulks (Con)]

The Bingham Centre makes the very cogent point that there is no clear analysis so far as to what the body of EU law is in an easily accessible form, so that businesses and individuals can ascertain what applies to them. However, the Solicitor-General said in the other place that there are 12,000 EU regulations currently in force in the UK and around 7,900 statutory instruments implementing EU legislation.

I understand the fears expressed around the House, particularly on the opposite Benches about the feeling that the Government have all sorts of sinister plans to take away rights. They will do so if they feel it necessary, by primary legislation, it is said, but no other way. This amendment would make it very difficult to do anything other than by primary legislation. First, a list of so-called technical provisions has to be established—a considerable challenge. No changes can modify any of the matters which are set out in Amendment 21. Those matters seem to cover more or less everything. What is to say that labelling and packaging is not a matter for consumer standards? Matters of health and safety entitlements, equality entitlements and rights of protection—almost anything can come within those definitions. Similarly, there are environmental standards and protection. I am not talking about fundamental matters such as the working time directive, but a great deal of the various regulations and statutory instruments that come from Europe are relatively trivial. Even those who endorse very much what has come from Europe would accept that not all of it is critical or crucial to our society going forward. That will make it almost impossible to change anything, which may be the desire of members of the party opposite who do not want to leave the European Union—or those all around the House.

That is the effect of this amendment. So far as Amendment 22 is concerned, on “human rights protection”, the noble Lord, Lord Cashman, was very succinct; he did not specify what “human rights protection” meant. We had a debate on the Charter of Fundamental Rights—

[Lord Cashman]

I precisely did not elaborate on the reasons why, as I felt that I did that at some length on Monday evening. But it is precisely because the Government have said that they have no intention of carrying over the Charter of Fundamental Rights, or the right of action based on the general principles. It is precisely for those reasons that we need to protect the aspect of human rights, because it is not contained specifically within the previous amendment.

[Lord Faulks]

The Human Rights Act is expressly preserved as a result of the changes that the Bill is going to bring about. The charter is, of course, ruled out by the Bill at the moment; I suppose, from what the noble Lord says, this is a way in which to bring it back in under the rubric of “human rights protection”—but, of course, “human rights protection” is potentially a varied and wide description.

This amendment is an absolute recipe for confusion and litigation. Although I understand the feelings of insecurity about what a Government might have in mind, it is not consistent with the overall objective of this legislation, which is to provide clarity at the moment when we leave the European Union.