European Union (Withdrawal) Bill

Debate between Lord Low of Dalston and Baroness Lister of Burtersett

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

[Lord Low of Dalston]

My Lords, despite the Government’s political commitment that equality rights that currently come from Europe will continue once the UK leaves the EU, there is a risk that without embedding the principle of non-regression in the Bill, these rights could be undermined in the future once the minimum standards set by EU law are no longer binding on the United Kingdom. The Women and Equalities Select Committee recognised this risk and recommended that the Bill should explicitly commit to maintaining current levels of equality protection.

The proposed new clause would respect the UK’s constitutional position by applying the same approach as in the Human Rights Act 1998, as we have heard from the noble and learned Lord, Lord Wallace. In particular, it respects parliamentary sovereignty because it would limit the role of the court in relation to primary legislation to making a declaration of incompatibility, rather than invalidating or striking down legislation, as is currently possible under EU law. In that sense, what the new clause proposes is in fact weaker than the current level of protection for equality rights derived from EU law.

What rights might be at risk? While we in Britain should be proud that we have some of the strongest equality law in the world, and in many areas have gone before and beyond what EU law required, some of our important current protections have been driven by developments at European level. Even those that originated in domestic law are often underpinned by EU law. For that reason, they cannot be reduced while we remain in the EU. So when the underpinning of EU law is taken away, there is a real risk that a future Government could seek to chip away at our existing protections. We have already seen this in the Red Tape Challenge, which the noble and learned Lord referred to, 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much of the Equality Act 2010, but we still saw provisions outside the EU directives being attacked and, in some cases, repealed.

Some of these protections, particularly those that are perceived as financially costly or burdensome to business, might be more vulnerable to repeal under a future post-Brexit Government. Risks that commentators have identified include: the reintroduction of a cap on compensation for discrimination at work; undermining aspects of the prohibition on unfavourable treatment related to pregnancy, which currently reflects the EU position; and chipping away at aspects of equal pay legislation post Brexit. The Beecroft report, which the noble and learned Lord referred to, which came forward as part of the Red Tape Challenge, repeatedly refers to the constraints imposed by EU directives. It recommended that compensation for the loss of earnings part of an award for discrimination dismissal should be capped and that small businesses should be able to opt out of a whole raft of employee rights, including unfair dismissal, the right to request flexible working, flexible parental leave and equal pay audits.

It is possible to anticipate objections that can and might be made to the amendment we are bringing forward—I can almost hear them in my ears before the Minister gets up to speak. The Bill is already transferring or preserving all the equality rights from EU law, so there is no need for this clause—I can hear that being said. The Bill does not transfer the underpinning of these rights currently provided by EU law. At the moment, the rights cannot be removed or diluted except by agreement at EU level. Maintaining the equivalent protection after the UK leaves the EU requires replacing this underpinning with protection in domestic law. That is what the proposed new clause would do.

Secondly, it might be said that this is a new right and that it is not the purpose of the Bill—how many times have I heard that?—to create new domestic rights. The proposed new clause would not create enhanced protection over and above the current position in the UK as a result of our membership of the EU; in fact, it is weaker, because it permits only a declaration of incompatibility rather than the striking-down of incompatible domestic primary legislation, as is currently the case.

Thirdly, it might be said that the clause would create confusion. I can think of two kinds of confusion that might be alleged, the first being that it created a new right which overlapped with the rights in the Equality Acts. However, it would create no such rights; it would merely provide that existing rights could not be removed or diminished. Neither a court nor a Minister introducing a Bill to Parliament should have any difficulty determining whether a new legislative provision removes an existing right in the Equality Acts. It might further be suggested that confusion is caused by introducing a Human Rights Act mechanism normally applicable to convention rights, but the Human Rights Act is not a convention mechanism; it is a domestic law mechanism carefully crafted to strike the right balance between respect for fundamental rights and the principle of parliamentary sovereignty. It is therefore entirely appropriate to adopt the same balancing approach in protecting equality rights.

Finally, it may be said that the proposed new clause will not work because some changes will need to be made to the Equality Acts, but it will not prevent technical changes being made to the Acts such as those referred to by the Government in their paper, Equalities legislation and EU exit. That paper confirms:

“No planned changes to the Equality Acts 2006 and 2010 or secondary legislation under those Acts, using the powers under the EU (Withdrawal) Bill will substantively affect the statutory protections provided for by that equality legislation”.


Such changes can therefore be made without removing or diminishing rights and will not be prevented by this clause. If in the future more substantive changes are required to the rights in the Equality Acts, it remains open to Parliament to make them in accordance with the principle of parliamentary sovereignty. I am entirely convinced of the value of the amendment and am very happy to support the noble and learned Lord, Lord Wallace.

[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.

Welfare Reform Bill

Debate between Lord Low of Dalston and Baroness Lister of Burtersett

Monday 14th November 2011 Grand Committee

[Lord Low of Dalston]

My Lords, I give my support to this amendment—the first in a long series that we are due to consider on this part of the Bill which deals with the personal independence payment. Like the noble Baronesses who have already spoken, I declare my interest as a recipient of disability living allowance since its inception in 1992. I hope that that can be taken as read throughout the rest of the amendments as we speak to them.

The noble Baroness, Lady Campbell, has made a very full case. What has emerged is the iconic significance of DLA to disabled people. It was an enlightened measure introduced by a previous Conservative Government, when, as the noble Baroness, Lady Campbell, told us, the noble Lord, Lord Newton, was Secretary of State—and, if I am not mistaken, Sir Nicholas Scott was Minister for Disabled People. It corrected many anomalies, as the quotation of Sir Bert Massie by the noble Baroness, Lady Campbell, reminded us.

Blind people were particularly grateful for the introduction of DLA. They had campaigned for many years for recognition of the extra costs attributable to blindness, but they were never officially acknowledged until the introduction of DLA. There were still anomalies; blind people were only eligible to apply for the mobility component at the lower rate—an anomaly that was only removed with the passage of the Welfare Reform Act 2009. That reform was supported by the Conservative Party at the time. I very much hope that blind people will not find that that hard-fought gain is snatched from their grasp—just as it has been won—with the implementation of personal independence payments. That would surely leave a legacy of bitterness that the Government would find hard to overcome.

This brings us back to the iconic significance of DLA. For many people it is not only the means but the symbol of their independence. As we have heard, much apprehension has been caused among disabled people by the changes the Government are making to the benefit system. People are fearful that their independence will be undermined with the change from DLA to PIP, or personal independence payment.

As Ministers probably recognise, the Government have a gap in confidence to overcome as regards the reforms where disabled people are concerned. They may well feel, on reflection, that retaining the name, which has such significance for disabled people, would be a small price to pay for the changes that they wish to make to the benefit. As the noble Baroness has said, names are important, and many disabled people obviously feel that we would lose this one at our peril. I hope, after due consideration, the Minister will take the same view.

[Baroness Lister of Burtersett]

My Lords, I would like to speak very briefly indeed in support of the noble Baroness, Lady Campbell. I apologise that I cannot be here for all of our deliberations today.

The noble Baroness made a very strong case. I was struck by one thing she said when she talked about the signal sent out by this label. The Ministers are constantly telling us about wanting to send out signals with this Bill. It is one signal after another. The noble Baroness has said very clearly that disabled people are telling us that this is sending out the wrong signal. Disabled people are the experts here and we should be listening to them.

I want to add one further point. An additional reason why personal independence payment could be very confusing and give the wrong signal is that, unfortunately, the term “independence” in government speak has come to be equivalent to being in paid work. There is a real danger that disabled people will think it is only for those of them who are able to be in paid work or who are in paid work. I do not believe that that is what “independence” means, but it has become a kind of conventional wisdom. There is an opportunity here for the Government to send out the correct signal to ensure that this benefit is taken up by those for whom it is designed. I hope that we can take note of and support what the noble Baroness has said. I am sure that the artwork has not yet been done. The amendment will therefore be completely cost-free and the Government could take the credit simply by accepting it.