European Union (Withdrawal) Bill

Lord Cashman Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I speak as a co-signatory to Amendment 63A, which is also in the name of the noble and learned Lord, Lord Wallace of Tankerness. I will be very brief, especially in a room full, it seems, of Law Lords and lawyers. I come to this in perhaps a very different way from others. As a 67 year-old man, I have spent most of my life not having equality before the law or the equal protection of the law; that is, as a gay man. Most of my rights—the equality I now enjoy—have been achieved largely by dragging legislative changes forcefully from Governments who did not want to give them to us or to many other misrepresented and defamed minorities. When it comes to human rights and civil liberties, you can never have enough belt and braces. Therefore, I do not understand why the exception to the carryover of EU law is solely in relation to the European Charter of Fundamental Rights and the general principles.

I promised to be brief and brief I will be. Tonight has illustrated to me more than any arguments that have come from a swathe of NGOs, such as the Bar Council, the Law Society, the Royal College of Nursing and others, that we cannot bring forward a change of such magnitude as this in a Bill that is supposed to retain all the EU law and then amend it afterwards. If we are to change the European Charter of Fundamental Rights, it should be done with full public scrutiny by both Houses, through primary legislation and the full engagement of civil society.

Let me finish on this. I talked about the rights that I and others have achieved that have had to be dragged. I want people to have easier access to the courts. If the Charter of Fundamental Rights in some way, through one clause or another, achieves that, I will go to wherever I go when I lay my head finally with great peace and rest. Why? Because the European Union was born out of the ashes of the Second World War—the ashes from crematoria that were dotted across Europe because people were taken there because of their difference, their perceived difference. Homosexuals were worked to death in concentration camps alongside trade unionists and many others. Yes, it is emotional but when you are denied and deprived of your human rights, it strikes at the very core of your being. When you are not given the equality that others have under the law, it strikes at your very existence.

These rights have been achieved and enumerated not only in conventions. Sadly, I have heard laughter rained upon people who have tried to defend the charter and the concept of human rights tonight, and I do not take that lightly. These rights that have been achieved have often been forced back against those who have sought them. They have been achieved, often, against the will of Governments and across the sacrifices of generations. Do not put them aside lightly. I urge noble Lords to support this group of amendments. If we are to change anything, let us do it through primary legislation or, at the very least, in the same way that we amend other retained EU law.

[Lord Faulks]

My Lords, I am sure that the Committee will be greatly moved by what the noble Lord, Lord Cashman, has said. Everyone is concerned to protect human rights but we must not fall into the trap of saying rights are good and therefore, more rights are better.

The role of the Charter of Fundamental Rights in our law has been an uncertain one. The noble and learned Lord, Lord Goldsmith, has had a great deal to do with it and knows a great deal about its creation; he played a part in its drafting. He got his retaliation in first at Second Reading and today, knowing that it was going to be pointed out to him that he was not initially an enthusiast for the charter because of the apparent disorder it might create in the rights architecture of our law. There is nothing wrong with changing your mind. It is quite a fashionable course for the party opposite to take at the moment. My difficulty is not with the change of mind but the fact that I agreed with his original stance, which was that adding the charter, which was designed for an entirely different purpose, ran the risk of undermining the clarity and cogency of our law.

I have some experience of the way rights are played in court. I was part of the Commission on a Bill of Rights, together with the noble Baroness, Lady Kennedy, who is in her place. I was also a Minister with responsibility for human rights. I have considerable experience over the past 20 years, following the incorporation of the European Convention on Human Rights by the Human Rights Act, of acting for public authorities which have been sued for alleged violations of those rights. Rights are very difficult to interpret, whether they come from a declaration, a charter or a convention. Inevitably they tend to be expressed in general terms and leave a great deal to individual judges to interpret and try to make practical sense of.

Most of the rights contained in the charter—obviously, some of them are inappropriate—are not controversial in what they seek to protect. What is far more controversial is how these rights should be interpreted. My right may be in conflict with your right. The protection of my right may have to be sacrificed or modified by the need to protect others’ rights or the powers that the state may inevitably have which affect or modify those rights. Of course we need to protect children, the disabled and the vulnerable in society, as a number of noble Lords have pointed out. Most of what we do in Parliament is concerned with the definition of circumstances in which individuals’ rights should be protected. A number of noble Lords have identified the right to dignity as being important since it is not reflected precisely in the European convention. We can all agree that it is important that citizens are treated with dignity but how does one translate that into anything meaningful in terms of the courts providing remedies?

The difficulty is that rights are now regarded as trumps and if we are to retain the charter, as seems to be the purport of the amendments in this group, we will have the rather strange situation of existing domestic law, whether it comes from the Human Rights Act or elsewhere, being supplemented by the charter, which will have a particular status. As the Government have made clear, the charter was never supposed to be a source of rights per se but a reflection of the rights that are generally protected by the European Court of Justice. It would be peculiar for our courts to continue to rely on the charter, which was designed to apply to EU institutions in interpreting the scope of EU law, after we have actually left the European Union.

The Advocate-General has occasionally made remarks about the charter. At its highest it has been described as “soft law”. If we need to protect or further protect rights, is that not a matter for Parliament or even judges interpreting the common law? Are we really so impotent as a Parliament that we have to rely on the relatively recent EU charter to provide such protection? Some of the amendments seek to turn soft law into hard law with application after we have left. This Bill is surely to provide clarity and coherence in the law after we have left the EU. Retaining the charter will do precisely the opposite.

I regret that I do not agree with various observations made at Second Reading that the Human Rights Act provides only for declarations of incompatibility. It does in fact provide damages for violations of the convention. I suspect the reason the charter has attracted such vigorous support is the rather egregious way it has been singled out for attention in the Bill. The reason it has been so singled out is the uncertainty of its application by the courts so far, and the Government’s desire to be absolutely clear that in the difficult task of interpreting the law that the judges will face, the charter can safely be ignored.

My amendment, which I come to in conclusion, is an attempt to provide some clarity as to what role, if any, the charter may have in the future. In so far as the charter is part of retained law—I appreciate that the definition of retained law is also the subject of debate—there seems no harm in it having some continued existence, in so far as it is necessary for the interpretation of that retained law; hence my amendment. What I find wholly unconvincing is the argument that it should somehow remain, as a non-native species, providing a free-standing source of rights—as in the Goldsmith amendment—or that it should be grafted on, subject to amendments to the Human Rights Act, as in the Wigley amendment. Who will benefit if the charter remains part of our domestic law after exit day? I fear it will not be those whom we rightly wish to protect; it will be the lawyers, and surely we do not want that.

Brexit: Justice for Families, Individuals and Businesses (EU Committee Report)

Lord Cashman Excerpts

Wednesday 20th December 2017 Lords Chamber

[Lord Cashman (Lab)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Shackleton. I thank her and other committee members for their support for this non-lawyer on that committee and, in particular, their patience. I also pay tribute to our chairman, the noble Baroness, Lady Kennedy of The Shaws, who has led us brilliantly. I came on to the committee very recently and have seen how, particularly when dealing with the public and taking evidence, she has used her skills and her charm to the benefit of Parliament and the committee.

I served as a Member of the European Parliament and was deeply impressed by the engagement of the British Government, the British legal system, NGOs and others with Commission proposals and those that subsequently became regulations. Here we are talking about three very important regulations which affect people’s lives.

The report considers the ramifications of Brexit for the EU’s programme of civil justice co-operation, whose regulations, as the noble Baroness, Lady Kennedy, referred to, are known collectively as the Brussels regime. The evidence in the report clearly illustrates that the three regulations and the system they engender play a significant role in the daily lives of UK and EU citizens—families, businesses and people who live, travel and work across not just one or two but in some instances 28 member states, of more than half a billion people.

As we know, human relationships can sometimes go wrong in many unpredictable ways: divorce; disputes over custody of children; medical negligence claims; litigation arising out perhaps an accident abroad; and employment disputes. Particularly given freedom of movement, all three regulations provide, as the noble Baroness, Lady Kennedy, said, certainty, predictability and clarity about where the resulting legal dispute should be pursued. They also provide for the automatic recognition—extremely important—and enforcement of judicial decisions and judgments throughout the 28 EU member states. They regulate a pan-European system of civil justice co-operation, which has been proved to work.

However, because of the Government’s ideological opposition to and obsession with the role of the Court of Justice of the European Union after Brexit, the certainty of civil justice co-operation directly overseen by the CJEU will cease. The Government’s stance is unhelpful and casts serious doubt on the future application of these three regulations and many others, and on the reciprocal rules they preserve between member states.

I return to the consequences for individuals, families and businesses seeking justice, its implementation and enforcement. This is deeply problematic and not helped by the European Union (Withdrawal) Bill—the Minister has heard me say this before on another occasion in your Lordships’ House—particularly Clause 6 on the development of jurisprudence post Brexit and its relevance to retained EU law. Senior Law Lords have already expressed their concerns to the EU Justice Sub-Committee on this matter on a separate occasion. I shall not go into further detail, but the uniformity and certainty given to general civil litigation by the Brussels I Regulation is very important because it brings certainty to all citizens and does not discriminate.

One of the fundamental principles of the current EU system is that it is there to protect people, reinforcing, I believe, the fundamental values at the heart of the European Union. The Brussels II Regulation, as we have heard, addresses important issues: divorce, legal separation, marriage annulment and parental responsibility, including rights of custody, access, guardianship and placement in a foster family or institutional care. These are vital issues for families, individuals and children. The maintenance regulation rules address matters relating to maintenance obligations. It is worth quoting Mr Tim Scott QC, who gave evidence on behalf of the Bar Council. Explaining the rationale of the two regulations, he said,

“there are 3 million citizens of other member states living in the UK and 1.2 million UK citizens living in other member states … A certain proportion of this very large number will experience contentious family breakdown”.

He said that the certainty provided by both regulations was “vital” and that,

“it is the ordinary citizens for whom this level of certainty is the most valuable”.

Another witness said of Brussels IIa that,

“it has overlaid all our pre-existing domestic legislation, so it spreads into every area of our domestic law … it has transformed the way family law has operated over the last 11 years”.

This is very important because EU law will continue to develop but we may well be left behind and there could be greater divergence between our laws post Brexit. Therefore, the uniformity introduced by the regulations, underpinned by the Court of Justice of the European Union, will be lost and people and businesses will suffer. It is worth repeating that it is not just people and businesses: families, individuals and children will suffer. I quote the report:

“To walk away from these Regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens and would, ultimately, be an act of self-harm”.


I too have read the Government’s responses to the committee’s concerns and I share those concerns. I am not convinced that the Government have a coherent or workable plan to address the significant problems that will arise in the UK’s family law system post Brexit if alternative arrangements are not put in place, and I look to the Minister to convince me otherwise. I fear that those least able to deal with the consequences of Brexit—in this instance, the 3 million EU 27 citizens here and the 1.2 million UK citizens living in the EU 27, and many others—will pay the price of this narrow, dubious referendum and their lives and their futures will be harmed irrevocably.

My final plea is to the Government: they must compromise and accept that it is in our mutual interests and in the interests of all citizens to accept a role for the Court of Justice of the European Union where to date, in terms of all judgments, we have fared extremely well.

Brexit: Human Rights

Lord Cashman Excerpts

Tuesday 12th December 2017 Lords Chamber

Asked by

[Lord Cashman]

To ask Her Majesty’s Government what are their human rights priorities in the light of Brexit.

[Lord Cashman (Lab)]

My Lords, I draw attention to my entry in the register of interests.

Divisions have grown deeper since the referendum to leave the European Union. There is growing uncertainty as people fear for their future, their families and their right to remain, despite the joint paper on citizens’ rights. If Brexit is to happen, this debate is a chance to begin to articulate what we expect from the Government and to start asking the challenging questions. Who do we want to be as a country? How can we live up to our history, and defend and build on it; and what stands in the way of our achieving that vision? Two days ago, on 10 December, we marked Human Rights Day—the 79th anniversary of the adoption of the Universal Declaration of Human Rights—a day of global focus but a reminder that human rights are a matter of national as well as international standards. That is why I am particularly pleased that we have this opportunity to debate human rights in the United Kingdom, a debate that I believe should be an annual event and opportunity to hold ourselves accountable on human rights.

As many will know, Britain was instrumental in creating the post-war international human rights consensus through the universal declaration and, in particular, the European Convention on Human Rights, which is now incorporated into domestic law through the Human Rights Act. Human rights in the United Kingdom go back, of course, much further: Magna Carta was 800 years old in 2015. These rights transcend political parties and individuals—they are universal. Yet there has often been resistance from Governments, and these rights have been hard-won. Women’s suffrage is merely 100 years old next year. Minorities, misrepresented and defamed, were equally denied. I know this human rights landscape not from an academic perspective but as a member of a much-maligned and misrepresented minority that was denied equality for a very long time, like so many other misrepresented minorities.

What has been achieved has been achieved across a thousand generations. That is why I celebrate organisations in this field but particularly the courageous individuals across the generations who have given so much—their liberty and their lives—to achieve what we have today. Rights have come gradually, with the Disability Discrimination and Race Relations Acts; the partial decriminalisation of homosexuality with the 1967 Act; the Equality Act 2010; civil partnerships and equal marriage. But although we have equal marriage here, it is still, shamefully, denied in Northern Ireland, as is abortion. Those anomalies must not be allowed to continue. Our ground-breaking Gender Recognition Act has now been overtaken by Malta’s, and we now need to face down the attacks on and objections to the rights of trans women and trans men. So the history of human rights in the UK has been one of steady progress, with legal protections improved over time, but often after hard-fought litigation. We must not allow standards to regress.

Where we have led, others have followed and improved. Our global position means that we are rightly held to a high standard. NGOs are watching and so are our peers in the international community. The UN’s universal periodic review—our peer review by other UN member states—took place earlier this year. The results do not place us in the top flight. Only 42% of the recommendations were accepted by the Government, compared to a global average of 73%, so arguably the UK’s status as a human rights leader is at risk.

In this very short debate we have a chance to set the tone for scrutiny of the European Union (Withdrawal) Bill, which we will undertake next year. The process of Brexit, as I said before, has created division and doubts. There are doubts about what rights will exist after Brexit; whether standards will improve or get worse; how laws will be interpreted and whether we will keep pace with international best practice. There are doubts too for those for whom essential services are at risk, from the loss of access to EU funding or EU workers. Therefore, the Government’s human rights priority should be to put those doubts to rest and ensure that protections are preserved and enhanced. Brexit must not reduce our rights but must be an opportunity to enhance them, keeping the protections of the EU Charter of Fundamental Rights as well as the application of the charter’s general principles. Indeed, the general principles provide a complementary and important tool for individuals to enforce their rights, as seen this year when John Walker successfully used them in the Supreme Court to close a loophole in domestic law denying same-sex couples the same pension rights as heterosexual ones. To remove the right of action based on the general principles is to deprive these rights of any real force.

So I ask the Minister, will the Government uphold the principle of non-regression in equality and human rights laws and ensure continued parliamentary scrutiny of any changes to our equality and human rights laws by restricting the use of delegated powers? Will they commit to remaining in the European Convention on Human Rights and not diminishing the protections in the Human Rights Act? Will they ensure that our courts can keep pace with relevant EU case law, post Brexit? On the latter, I share the concerns expressed to your Lordships’ EU Justice Sub-Committee by senior Law Lords on the current wording of Clause 6 of the EU (Withdrawal) Bill, which creates legal uncertainty and has the potential to politicise the judiciary.

If we want to achieve progress the Government should consider the following—to quote Gilbert and Sullivan, “I’ve got a little list”. It includes giving enhanced status to UN treaties, for example the UN Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child, as well as ratifying the Istanbul Convention on violence against women. It includes establishing a national action plan on human rights as a sensible framework for the implementation of UN human rights recommendations. It includes undertaking an equality impact assessment of new arrangements to replace EU funding—assessing, for example, the impact that Brexit will have on disabled people, older people and carers, and services available to groups vulnerable to violence, including children, women and lesbian, gay, bisexual and transgender people.

The Government should also consider undertaking a cumulative impact assessment of the 2018 Budget and reconsidering existing policies that are contributing to negative financial impacts for the most disadvantaged. Finally, they should follow up their race disparity audit with genuine action: for example, taking forward the Equality and Human Rights Commission’s recommendations in A Roadmap to Race Equality and responding to the Lammy review with innovative options. There is much to do to retain the rights we have and to improve upon them.

There is so much I have not mentioned: homelessness; the doubling of the number of rough sleepers in just seven years; and increasing poverty. That is why I believe firmly that we need an annual human rights debate. I know that this House will perform its duty diligently in scrutinising Brexit legislation, never more so than in the defence of rights and freedoms. Therefore, I now look forward to the contributions of noble Lords.

Queen’s Speech

Lord Cashman Excerpts

Wednesday 28th June 2017 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I am pleased to speak in this debate, and especially pleased to have listened to my good friend and neighbour the noble Lord, Lord Owen. We were on different sides during the referendum, and I well remember him and Lady Owen standing on their balcony and me standing on mine as a flotilla of ships came up the Thames. He was welcoming them in with one gesture, and I was welcoming them to go the opposite way with another gesture.

It is worth repeating that, whatever else the election was, it was not an endorsement of the Prime Minister’s approach to Brexit, and it was certainly not a mandate for more of the same. It helps no one to argue otherwise. On our relationship with the European Union, more than anything else, this Government must change direction. All options must now be on the table. The issue of the European Union goes beyond, as others have said, the old party politics. It is about the future of the country—the country we pass on to the next generation and generations yet to come. It is for that reason that the Government must start to listen. They must stop facing down opposition by relentlessly and robotically referring to the “settled will of the people” in an advisory referendum. Nor should government Ministers question the patriotism of television interviewers because they dare to try to hold Ministers accountable for EU negotiations, to which the noble Lord, Lord Wallace, referred.

Even if the will of the people had been settled, and it never is, upon what is it settled—the misinformation, lies, fabrication and blatant propaganda of the referendum campaign? As I said a year ago in this House, that referendum was not a great democratic exercise. Democracy is undertaken on the basis of informing the electorate, not misinforming, and by illumination, not by deceit. The excesses were dangerous. It was a referendum campaign that pandered to people’s fears that unleashed a darkness and a narrow, nasty nationalism that I thought had long disappeared from this country. That darkness is still with us. We are a deeply divided country.

I revisit these events because we must now have the courage to take a different course. We must find again, as other noble Lords have said, consensus and wide agreement. There is too much at risk: not only jobs, the economy, inward investment, a brain drain, but rights and freedoms too—the rights of more than 16 million people who voted differently and feel ignored and excluded; the rights of those excluded from voting in the referendum in the first place; and the rights of the younger generation. Then there are the rights of more than 3 million people from other EU countries now living, working and settled here, who, with their families, face an uncertain future. Will they finish their training and their education? Will their employment continue or will they be replaced? Will their children be allowed to stay if there are complications about length of residence in the United Kingdom? They are 3.2 million ordinary women and men, children and young people. Students, teachers, nurses, cleaners, porters, waiters, doctors, academics and scientists—our neighbours and, yes, our friends in every part and walk of our daily lives are all now plunged into uncertainty, anxiety and despair.

The same plight affects more than 1 million British citizens in similar situations and circumstances in the other EU countries. Futures are now uncertain, hopes are shattering before them and careers are upturned. What happens to family unity, let alone family reunification, especially when marriages, partnerships and families occur across national citizenships?

Let me deal specifically with the Prime Minister’s proposal for EU citizens when we leave the EU. I ask the Minister directly: what will be the status of the individuals who apply? I hope the noble Lord is making notes of the questions. During the processing of applications, will those individuals be allowed to continue in employment and education and still have access to all rights and benefits, including access to the NHS? Will there be fast-track applications? Will one application suffice for one family? If not, why not? Will the cost be waived, given that the Government are changing people’s status?

Given that there will be crossover in other EU countries, will there be a supranational body to oversee appeals and judgments? Will the Government transpose into UK law unreservedly the family reunification directive? Finally, how long will it take to process potentially 3.2 million applications and the supporting documentation? I look forward to the answers.

Even at this stage it is not too late. I say this as much to my own Front Bench in another place as I do to the Government. It is not too late to reinforce our decent values and decent principles. If Parliament will not reverse what is in my opinion the national suicide of Brexit, it must deliver all these rights and end the uncertainty for all citizens by retaining access to the single market and the customs union while reinforcing the rules of conditionality on freedom of movement and residence, as so eloquently outlined in his brilliant speech by my noble friend Lord Adonis, whose amendment I support, and indeed again brilliantly outlined by the noble and learned Lord, Lord Brown of Eaton-under-Heywood.

Now is the time to bury political pride, and to do what is in the country’s interests. If we do not take this course, the consequences for the UK nationally and internationally, and for its citizens, will be as deep and as profound as they will be long lasting. My great fear is that this Government are not listening and will not listen.