European Union (Withdrawal) Bill

Debate between Lord Wigley and Baroness Deech

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

[Lord Wigley (PC)]

My Lords, I rise to speak to Amendment 35 standing in my name and that of the noble Baroness, Lady Jones of Moulsecoomb, which would leave out subsections (4) and (5) and insert the words as set out in the amendment. The objective of Amendment 35 is to retain the charter rights in UK law and afford them the same level of protection as those in the Human Rights Act. It has similar objectives to some of the other amendments that have been proposed. I must admit that I address the House on these issues with some trepidation because I am not a lawyer, although I have taken the advice of lawyers in drafting this amendment.

The amendment provides for what I hope is a sensible and responsible approach to Brexit that respects the referendum decision but does not sacrifice rights and protections on the altar of ideology. Removing the European Charter of Fundamental Rights from EU retained law runs counter to the stated purpose of the Bill, which is to facilitate the wholesale transfer of EU law into the domestic statute book. It also contradicts the Government’s assurances that the same rules will apply on the day before exit as on the day after. The Government’s justification for this anomaly is to claim that the charter is unnecessary and that its omission will not result in any loss of substantive rights protections.

In an attempt to support their public assurances to that effect, the Government have since published a right-by-right analysis that they say demonstrates that each right can be found in domestic law. The analysis is unpersuasive. According to Liberty and Amnesty International, it is perfectly possible to retain the charter and deal with any redundant sections after exit just as with the rest of retained EU law, as has already been mentioned. The Equality and Human Rights Commission has obtained the opinion of senior counsel Jason Coppel QC on the Government’s analysis of the charter. His advice is that the loss of the charter will lead to a significant weakening of human rights protection in the UK. This is because, first, there will be gaps in protection, for example in relation to children’s rights, data protection and non-discrimination. Secondly, many rights will no longer be directly enforceable, leading to further gaps in protection. Thirdly, many remaining rights could be removed by Ministers exercising delegated powers.

A particular concern that I would like to highlight is that Brexit will remove any children’s rights and safeguards currently offered by the European Charter of Fundamental Rights, which imposes a constitutional obligation on member states to adhere to children’s rights standards when implementing EU law. The EU’s Court of Justice now routinely refers to the charter when adjudicating on cases involving children.

[Baroness Deech]

I am reluctant to interfere. My noble friend Lord Listowel, who is sitting next to me, knows more about child law than anybody. I must point out that the protection given to child law in the charter is very crude indeed compared with decades-old jurisprudence in this country. Very recently, the Children and Families Act 2014 and the Children Act before were a nuanced and balanced approach to the protection of children, their education and their rights to contact with both parents. They are infinitely more subtle and pay more attention to their welfare than this kind of sledgehammer approach from the charter.

[Lord Wigley]

I hear what the noble Baroness says. All I would say is that by ensuring that we incorporate things into UK law, we then have an opportunity, democratically and in an accountable fashion, to make modifications as may be necessary. The danger is that we will throw out babies with bathwater.

Again, the Government have stated that the removal of the European Charter of Fundamental Rights from UK law,

“will not affect the substantive rights from which individuals already benefit in the UK”.

The White Paper notes that many of the rights protected in the charter are also found in UN and other international treaties that the UK has ratified, including the UN Convention on the Rights of the Child. However, in a centralised context there is no specific statutory provision requiring respect for children’s rights in lawmaking, nor a general requirement to safeguard and promote the welfare of children in the UK.

Furthermore, this particular argument has a specific Welsh angle. Stronger protection for children’s rights exists in the devolved nations, specifically in Wales. The Rights of Children and Young Persons (Wales) Measure 2011 imposes a duty on Ministers to have due regard to children’s rights as expressed in the UNCRC when exercising any of their functions. To achieve that obligation, since 2012 the Welsh Government routinely undertake child rights impact assessments on proposals for Welsh law or policy that will affect children directly or indirectly.

The withdrawal Bill will limit the scope of the devolved nations to alter law within the current devolution settlement and brings competence on matters that have been arranged under EU law back to Westminster. This would prevent the devolved nations from exercising their powers to withstand or amend legislation from Westminster, even where this contradicts their own commitments to children’s rights. I submit the amendment to the Committee as a contribution to the debate on these most important considerations.