(5 years, 2 months ago)
Lords ChamberThat is the political game as we all attach different names to it. The noble and learned Lord, Lord Goldsmith, also speculated on the use of the Civil Contingencies Act in relation to the extension. I assure the noble and learned Lord that there are no plans to use the Civil Contingencies Act in a no-deal scenario. I point noble Lords to the words of the Prime Minister on contingency powers. He said that,
“what we want to do is get a deal and there is no purpose in discussing the hypothetical scenario”,
around the Benn Act. Let me be clear and reiterate to all noble Lords, as I have said a number of times on this subject: we will of course obey the law.
Let me pick up this point. He said that of course we will obey the law. If the House of Commons has not agreed to a deal nor approved no deal by 19 October, does he accept that the law—which he says he will obey—means that the Prime Minister must seek an extension?
I am not going to get into providing interpretations of an Act that was not government legislation, which we advised against and which we said, in our view, had considerable deficiencies. These are matters for lawyers. It is ultimately for the courts to determine what the Act says and requires, so I will go no further, no matter how many times people intervene on me, than saying that we are going to abide by the law.
(5 years, 2 months ago)
Lords ChamberThe noble and learned Lord is a distinguished lawyer. In fact, there are a lot of distinguished lawyers in this House. Some may say that there are too many, but nevertheless we have lots of distinguished lawyers and I am not a lawyer. I repeat yesterday’s statement that the law officers made in another place: we will always comply with the law. There are a lot of potential outcomes, and no doubt the Government will wish to consider them all carefully when it comes to it, but we will comply with the law.
My lords, the noble Lord has omitted to answer the question put by the noble and learned Lord, Lord Goldsmith, as to the Government’s view of the law. It is a perfectly reasonable question, so perhaps he will answer it.
I believe that I have answered the question. We are a law-abiding Government and we will abide by the law. We will always assess carefully the implications of that law, but we will always comply with it and the legal advice that the Government receive.
(5 years, 9 months ago)
Lords ChamberMany serious consequences will flow from leaving with no deal, but we do not want to leave with no deal. If the noble Lord is so convinced of the need to leave with a deal, perhaps he could talk to his colleagues in the House of Commons and ask them to vote for the deal that is on the table.
The Minister has just said that the Government are planning for all eventualities. If the House of Commons has a vote on 13 March on whether to support no deal, what would the Government’s position be in that eventuality?
Does the noble and learned Lord mean if the House of Commons votes to support no deal?
If the House of Commons has a vote on whether to support no deal or not, what will the position of the Government be?
That is a very good question. I will leave my colleagues, the Whips in the House of Commons, to determine that. I suppose it will depend on what the Motion says and the results at the time.
Yesterday, we published a paper that summarises government activity to prepare for no deal as a contingency plan and provides an assessment of the implications of a no-deal exit for trade and for businesses, given the preparations that have been made. More information for businesses and citizens can be found on the Government’s exit website.
Yesterday, my right honourable friend the Prime Minister set out three clear commitments to the other place that should provide reassurance and clarity about the way forward:
“First, we will hold a second meaningful vote by Tuesday 12 March at the latest. Secondly, if the Government have not won a meaningful vote by Tuesday 12 March, then they will, in addition to their obligations to table a neutral, amendable motion under section 13 of the European Union (Withdrawal) Act 2018, table a motion to be voted on by Wednesday 13 March, at the latest, asking this House if it supports leaving the EU without a withdrawal agreement and a framework for a future relationship on 29 March. So the United Kingdom will only leave without a deal on 29 March if there is explicit consent in this House for that outcome.
Thirdly, if the House, having rejected leaving with the deal negotiated with the EU, then rejects leaving on 29 March without a withdrawal agreement and future framework, the Government will, on 14 March, bring forward a motion on whether Parliament wants to seek a short, limited extension to article 50, and, if the House votes for an extension, seek to agree that extension approved by the House with the EU and bring forward the necessary legislation to change the exit date commensurate with that extension. These commitments all fit the timescale set out in the private Member’s Bill in the name of the right hon. Member for Normanton, Pontefract and Castleford”.—[Official Report, Commons, 26/2/19; cols. 166-67.]
(6 years, 7 months ago)
Lords ChamberMy Lords, I am grateful to the noble Lord, Lord Low, for his time and consideration on the important issue of how we maintain our equality protections as and after we leave the EU. I appreciate the discussions on this topic that he has had with the Bill officials and my ministerial colleagues. Before addressing the noble Lord’s Amendments 83A and 83E, the Government have reflected on our conversations with him, and today tabled amendments that will extend the statements regarding the Equality Act under Schedule 7 to SIs made under the consequential power in Clause 17(1).
This and other amendments we debated in Committee have sought to reflect in statute the political commitment that the Government have already made in this area—we will maintain the existing protections in and under the Equality Acts 2006 and 2010 after our exit from the EU. Following requests for assurances on this point in the debate in the other place, we tabled an amendment that will secure transparency in this area by requiring ministerial Statements about the amendment made to the Equality Acts by every piece of secondary legislation made under key delegated powers in this Bill.
The statements will, in effect, flag up any amendments made to the Equality Acts, and secondary legislation made under those Acts, while ensuring that Ministers confirm in developing their draft legislation that they have had due regard for the need to eliminate discrimination and other conduct prohibited under the 2010 Act.
As previously stated, the language of a political commitment does not translate to the statute book. So while our commitment to existing equality protections works perfectly well politically, and indeed in the wider world outside this place, these terms do not and could not have a sufficiently clear and precise meaning for the purposes of statute. These statements as tabled in the other place—
The Minister is repeating what he said in response to my Amendment 30. It was pointed out by me and the noble Baroness, Lady Lister, that the word “protection” has a statutory basis in the 2006 legislation.
I heard the point that the noble and learned Lord makes, but we are talking about the statements generally.
These statements, as tabled in the other place, applied only to Clauses 7(1), 8 and 9. The Government did not include other powers in this Bill because they are much more tightly constrained than those powers, and their exercise should not give rise to any amendments to the Equality Acts or any harassment, discrimination or other conduct prohibited under the Equality Act 2010. However, we have, as I said, reflected on this, and held discussions with the noble Lord, and we are happy to extend these statements to the consequential power in Clause 17(1). I hope that this will satisfy the noble Lord and that it will enable him to withdraw his amendment. However, this is not a matter on which we will be reflecting further before Third Reading. If he wishes to test the opinion of the House, he should do so now.
(6 years, 7 months ago)
Lords ChamberI thank noble Lords for their time and consideration on the important issue of how we maintain our equality protections as and after we leave the EU. There really is no difference between us in our commitments to these important issues. Amendment 30A, in the name of the noble and learned Lord, Lord Wallace of Tankerness, follows on from the debate we had in Committee in that it seeks to reflect in statute the political commitment that the Government have already made in this area—that is, that we will maintain the existing protections in and under the Equality Acts 2006 and 2010 after our exit from the EU.
I must, however, be clear with the noble and learned Lord that we have three concerns about his suggested approach. First, there is the issue of language, context and potential for conflicting rights. Put simply, the language of a political commitment does not translate to the statute book. Therefore, let me say to my good noble friend Lord Cashman that while our commitment to existing equality protections works perfectly well politically—we are committed to them here and in the wider world outside this place—it must be noted that terms such as “protection” and “diminish” do not have a sufficiently clear and precise meaning for the purposes of statute. As a consequence, the amendment runs a very real risk of creating tensions for real people, with real interests that may be difficult to resolve between existing and potential future rights that we may wish to legislate for.
To give an example, noble Lords may be familiar with the experiences on buses of some passengers who use wheelchairs, and the difficulty that they have sometimes had in accessing the space theoretically available to them when it has been taken by people, often parents with young children in pushchairs. The question arises as to whose rights take priority, especially as, arguably, both parties are covered by “protected characteristics” provided for in the Equality Act 2010. This particular example of potentially conflicting rights is being resolved, following a court judgment that passengers who use wheelchairs have priority. However, I trust this helps illustrate the risk of future developments in equality law being, in effect, struck down in the courts because, while they might benefit certain groups, these benefits might come at the expense of rights in retained EU law secured under this Bill. As has been noted, the Equality Act 2010 is lengthy, detailed and specific in order to avoid questions of competing or conflicting rights. Setting it in stone against any future equality issues we or future Governments may wish to provide for runs fundamentally against the grain of the Act and our developing and dynamic approach to equality rights in this country.
Our second concern is closely related in that we fear this new clause would create considerable legal uncertainty. Indeed, the noble and learned Lord has recognised this by including proposed subsections (4) and (7) which describe what a court may do when faced with an issue of the compatibility or otherwise of new provisions and existing equality rights. I hope he will understand when I say that, especially in the context of our exit from the EU, we think it is vital to keep to an absolute minimum any legal uncertainties that may arise for the good of businesses and individuals, so a new clause that seems positively to embrace such uncertainty is not an attractive prospect. It is not at all clear what businesses or individuals are supposed to make of any rights and obligations that might apply to them pending the emergence of the case law that the new clause anticipates.
Finally, there is the relationship between the proposed new clause and the Human Rights Act 1998, the architecture of which reflects the existence of the European convention. The noble and learned Lord’s text uses key concepts from the HRA, notably declarations of incompatibility and their consequences, and proposed subsections (8) and (9) directly cross-refer to sections of the HRA. This simply is not appropriate. Indeed, at the risk of echoing my earlier point, we believe these linkages would lead to uncertainty and confusion. There is, for example, no explanation of what the effect of declaration of incompatibility would be in this context. Would the primary legislation continue to have effect or not? There is clearly potential for gaps and contradictions to develop between challenges and actions based on the new clause as opposed to the HRA and its existing reference to the prohibition of discrimination under Article 14 of the European Convention on Human Rights.
I have already alluded to our clear public commitment to maintaining existing equality protections, and I am very happy to repeat that commitment now. While I understand the noble and learned Lord’s best intentions in this area, I must gently suggest to him that the interests of equality rights on our statute book are not well served by his proposed new clause and I hope that he will feel able to withdraw it. For the avoidance of any doubt, the Government will not be reflecting further on this matter, so if he wishes to do so, he should test the opinion of the House this evening.
The Minister should not tempt me. I am grateful to him for his reply, which was probably a bit more substantive than ministerial replies to the previous two debates, although it was, equally predictably, negative.
I do not think that the Minister’s arguments bear too much scrutiny. He complained about the language used in my amendment and said that it is difficult to put a political commitment on to a statutory basis. He was challenged by the noble and learned Lord, Lord Goldsmith. If the wording here is not right, what are the Government proposing to do to give underpinning? I do not think that at any point in reply to this debate did the Minister indicate that there is no need for a proper underpinning of the equality rights we have. Indeed, given the Government’s commitment to maintaining them, one assumes that the Government believe that they should continue and be underpinned. If the wording proposed is not right, there is a deafening silence from the Government’s side about what words they would use. The Minister raised the declaration of incompatibility and whether that meant striking down. I think I made it clear, as did the noble Lord, Lord Low of Dalston, that we do not mean striking down. What we seek in this amendment is to make it consistent with the principle of parliamentary sovereignty after we leave the European Union.
It is said that the clause conflicts with the Human Rights Act. I confess that my party and I have argued many times for a written constitution for the United Kingdom, but we are always told that one of the benefits of the unwritten constitution is its flexibility. So we introduced into our constitution a Human Rights Act with some very good provisions; the noble and learned Lord, Lord Goldsmith, indicated some of the focus of attention and consideration that that Act places upon Ministers when they consider compatibility. If we have that, what is wrong? What is the constitutional fault in using that good practice to extend into another area where we are talking about something fundamental?
That is the concluding point because this is a fundamental question. The noble Baroness, Lady Lister, and the noble Lord, Lord Cashman, reflected on what kind of country we want to be. The Government set out in their White Paper last March that they want to respect and cherish equality rights. There is common ground on that. What we have not seen from the Government is a way in which they can ensure that that is underpinned as we go forward, so that we can ensure that that characteristic of what kind of country we want to be can be maintained without threat. I find it very regrettable but the night is a bit too late to test the opinion of the House, so I beg leave to withdraw the amendment.
(6 years, 9 months ago)
Lords ChamberThe noble and learned Lord, Lord Wallace, will have the opportunity to respond to the question posed by my noble and learned friend Lord Mackay after I have set out the Government’s position.
I thank noble Lords for this brief debate on this extremely important subject. Amendment 70A, tabled by the noble and learned Lord, Lord Wallace of Tankerness, seeks to ensure a firm basis for equalities protections as we leave the EU. In that sense, and in response to the noble Baroness, Lady Hayter, I of course understand and sympathise with the motivation behind the amendment and recognise the noble and learned Lord’s interest, shared by many others on all sides of the Committee. Indeed, the noble Lord, Lord Adonis, tabled Amendments 101A, 133A, 161 and 259 —I thank him for his brevity in not addressing them—which seek to restrict the powers in Clause 7 from making any changes to equalities and human rights legislation.
However, as I will endeavour to set out for the benefit of the Committee, we believe that these amendments are unnecessary given our commitment to maintaining existing equality and human rights legislation and, more widely, to sustaining our strong track record in this area. Amendment 70A would in fact give rise to significant new rights—which is not, of course, the purpose of the Bill—and in all likelihood would raise difficult questions, as my noble and learned friend Lord Mackay indicated, regarding legal certainty.
The Government have already made clear our commitment that all the protections in and under the Equality Acts 2006 and 2010 and equivalent legislation in Northern Ireland will continue to apply once the UK has left the EU. This has been stated unequivocally on several occasions, including in the March 2017 White Paper that preceded the Bill, the equality analysis we published in July 2017, and in the government response of October 2017 to the Women and Equalities Select Committee’s report, Ensuring Strong Equalities Legislation after the EU Exit.
As further assurance, the Government tabled an amendment in the other place—now paragraph 22 of Schedule 7—that will secure transparency in this area by requiring ministerial statements to be made about amendments made to the Equality Acts under each piece of secondary legislation under key powers in the Bill. These statements will in effect flag up any amendment to the Equality Acts and secondary legislation made under those Acts, while also ensuring that Ministers confirm that, in developing their draft legislation, they have had due regard to the need to eliminate discrimination and other conduct prohibited under the 2010 Act. We further confirmed in the other place that similar statements will be made in relation to other Brexit Bills. So we have clearly shown our commitment to maintaining the protections in our existing equality legislation, and ensuring that Brexit will not see the UK somehow regressing in this area. In contrast, Amendment 70A would go much further by creating new freestanding rights which would, indeed, apply in circumstances where the Charter of Fundamental Rights does not. Let me take a few moments to explain this in a little more detail.
First, subsection (3) of the new clause proposed by Amendment 70A takes an element from the Charter of Fundamental Rights, strips it of its original context and creates from it an exceptionally wide-ranging anti-discrimination duty. The effect of this is to go well beyond the requirements of the equivalent charter rights, which, as has been said, apply to member states only when they are acting within the scope of EU law, and well beyond the requirements of current domestic law. It would, for instance, introduce a legal duty on public bodies not to discriminate on grounds of language, property, birth or political opinion. That may sound reasonable on the face of it, but if we consider language for a moment, this duty could, for example, give all non-English speaking users of government services a right to claim discrimination if any of those services is available only in English and not in their own first language. This could ultimately mean that all public services would have to be provided in a very wide array of languages, at a substantial and disproportionate cost, which perhaps would even make some discretionary services unviable.
As many noble Lords will be aware, the key wording of subsection (3) of the new clause proposed by Amendment 70A originates in Article 14 of the European Convention on Human Rights. Again, I want to be very clear on this point: nothing in the Bill affects the Government’s ongoing commitment to the ECHR, which is, of course, given further effect in domestic law by the Human Rights Act 1998. Against this backdrop of clear commitments to the European Convention and to maintaining all the protections in and under the Equality Acts, I respectfully suggest that the concern expressed about the future of equality rights after we leave the EU and the assumption that new freestanding anti-discrimination rights are in some way needed to offset the impact of our exit is misplaced.
The Equality Act 2010 is the cornerstone of our equalities legislation. It covers all the requirements of the four existing EU equality directives but also goes much further. For example, our ground-breaking gender pay gap reporting requirements and our public sector equality duty have no equivalent in EU law. Also, there is no existing EU directive that prohibits, as our Equality Act does, discrimination by providers of goods or services because of age, disability, religion or belief and sexual orientation. We are proud of the UK’s track record on equalities and we do not need to be part of the EU to sustain that excellent record.
Subsection (2) of the new clause proposed by Amendment 70A seeks to establish a legal provision that everyone is equal before the law. However, that very principle is already reflected in the rule of law in the UK and is one of the longest-established fundamental principles of the UK’s constitution. The common law requires public authorities to act reasonably when exercising their powers, and this includes a requirement not to discriminate arbitrarily between different cases.
Finally, subsection (4) of the clause proposed by Amendment 70A would, albeit without directly amending the Human Rights Act 1998, have the effect of linking the new rights created by subsections (2) and (3) to the framework of key provisions in the 1998 Act. Again, with respect, I must say that I do not think that this is appropriate. We believe that it would create legal uncertainty and confusion, not least around the existing prohibition on discrimination under Article 14 of the ECHR, as set out in the Human Rights Act 1998. The bottom line is that substantive new rights are not consistent with the intended purpose of the Bill, which is about maintaining the same level of protection on the day after exit as before. It is not intended to be a vehicle for substantive legislative changes such as those proposed and so we cannot accept Amendment 70A, and I hope that the noble Lord feels able to withdraw it.
It is also to this end that, while we agree with and understand the honourable intentions behind the amendments of the noble Lord, Lord Adonis, we cannot accept them as the legislation that underpins these rights and protections will contain many provisions that will become deficient after our exit. Indeed, the response that the Government put out in October 2017 highlighted some of these deficiencies. For example, the Equality Act refers in several places to EU or to Community law. These references are likely to need to be replaced with the term, “retained EU law”. As such, we believe that it is essential that the Clause 7 power is able to address these deficiencies so that we can ensure that the legislation that safeguards these rights and protections can continue to function effectively—which is what I would have thought we all wanted to see. Without this ability, businesses and individuals may be vulnerable to the resultant gaps in the law, which would be counterintuitive to the intentions of the noble Lord.
Equally, it cannot be the intention of the noble Lord to prevent the Government remedying a breach of our existing international obligations using Clause 8. Both these clauses are subject to the same restrictions on amending the Human Rights Act and the same equalities transparency requirements. In relation to Clause 9, to which Amendment 161, also in the name of the noble Lord, Lord Adonis, refers, one of our clearest similarities with the EU is our shared historic belief in the values of peace, democracy, human rights and the rule of law. It is extremely difficult therefore to envisage that any withdrawal agreement we negotiate with the EU, and by extension the Clause 9 power to implement parts of that agreement, will somehow undermine human rights and equalities law. Rather perversely, Amendment 161 would actually prevent Clause 9 strengthening human rights or equality law on the basis of something agreed in the withdrawal agreement with that effect.
However, as I have already set out, Clause 9 is, like Clause 7(1) and Clause 8, explicitly prohibited from being used to amend, repeal or revoke the Human Rights Act or any subordinate legislation made under it. In the case of Clause 17, I reassure the Committee that these powers may be used only in consequence of, or in connection with, the coming into force of a provision of the Bill itself. We expect that any changes made to equalities or human rights legislation to deal with the provisions of the Bill will be to ensure that the changes caused by the Bill are properly reflected in the statute book and that there is smooth transition in the law. To continue to work effectively and appropriately, the statute book must be tidy. Case law and other legal authorities provide a narrow scope for Governments to exercise consequential and transitional powers of this type. As such, they cannot be used to make truly substantive changes to equalities or human rights legislation.
I hope that what I have been able to say has satisfied noble Lords that the Government remain committed to maintaining equalities and human rights protections throughout the process of leaving the EU and I hope that that will enable the noble Lord to withdraw the amendment.
I think my noble friend the Leader will be setting out our proposals for the sifting committee in this House. I have not seen the details, but my understanding is that there will be recommendations to the Minister.
My Lords, I thank all noble Lords who took part in this debate and I thank the Minister for his reply. He will perhaps not be surprised to learn that I was not wholly satisfied with his reply—although in fairness there was some common ground. He, like me, referred to the White Paper of March 2017 and the commitments that the Government made. Indeed, I accepted and acknowledged that in many cases the rights that have been established in relation to equality in this country have sometimes exceeded those in the European Union. However, that somewhat misses the point, because what I sought to do with this amendment was to ensure that, as we go forward and leave the European Union, these rights will still be there and that no future Government will be able to row back on them without having to give a proper explanation to Parliament.
The Minister made a couple of other points and I will reflect on what he said. I wonder about making the same offer as the noble Lord, Lord Deben, made in the previous debate: if he thinks that some of these go too far, if he and I were to meet and he were to excise the ones he thinks take it beyond what is already there, would he then be prepared to accept an amendment on Report without these? That might be something he would wish to consider.
I also note that while he made the point in relation to subsection (2):
“All individuals are equal before the law”,
as I did in my remarks, that that is part and parcel of our common law, he did not have anything to say about the second part, which refers to having,
“the right to the equal protection and benefit of the law”.
The noble Baroness, Lady Lister, very graphically described the recent case which shows that treating everyone equally before the law does not take account of the fact that some laws might impact disproportionately on some categories of people and end up in discrimination.
(6 years, 10 months ago)
Lords ChamberThe Minister said there have been six meetings since the referendum. Given that at the first meeting of the Joint Ministerial Committee on EU Negotiations the communiqué said that they would meet on a monthly basis and that was in November 2016, by my calculation there have been several more months than six since then. Can the Minister tell us how many official meetings took place between February and October 2017?
I do not have information about how many official meetings have taken place. I understand that officials are meeting extensively. They are in regular contact. I am told by my officials that contact with officials in the Scottish and Welsh Governments and discussions are extremely positive. That is not the same as getting political agreement, but we are endeavouring to do that. Proposals have been tabled, after extensive discussion, for the meeting tomorrow. We hope there will be agreement. I obviously cannot guarantee that, but we hope there will be. We remain committed to obtaining legislative consent Motions if possible, and we will continue that dialogue in an effort to do that. That is the responsible way to proceed, but I totally understand the frustration expressed from all parts of the Committee that we do not yet have that agreement. We want to get that agreement. We are endeavouring to get that agreement. We will do our best to get it, but we will table amendments for this Committee to consider before we get to Clause 11.
(7 years, 1 month ago)
Lords ChamberOf course, we have said that Parliament will get a final vote on the withdrawal agreement, and we have just announced that there will be legislation to implement that. Parliament also voted for Article 50 to be implemented and the EU notified that we are leaving the organisation on 29 March 2019.
My Lords, the Statement refers to the negotiations regarding the right to stand and vote in local elections. Given that European Union citizens can also stand and vote in Scottish Parliament elections, and the franchise for Scottish Parliament and Scottish local government elections is wholly devolved to the Scottish Parliament, can the Minister clarify the Government’s position with regard to standing and voting in the devolved elections and whether the Scottish Government have been involved in this particular part of the negotiations?
We are having regular discussions with the devolved Administrations. The Scottish Government, the Welsh Government and civil servants in Northern Ireland were informed of our proposals to introduce the withdrawal Bill.