European Union (Withdrawal) Bill

Debate between Lord Willis of Knaresborough and Lord Wallace of Tankerness

Wednesday 21st March 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I support the amendment moved by the noble Lord, Lord Low of Dalston, and support Amendment 245A, to which he also spoke. He has given a very comprehensive explanation as to the origins of the amendments and why we believe that they are important.

Two weeks ago, when we were debating Amendment 70A and other related amendments, one suggested that there should not be any change to equalities legislation, and the noble Lord, Lord Callanan, in responding indicated that that might not be appropriate. He said:

“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”.—[Official Report, 7/3/2018; col. 1168.]


The amendment gets around the practical objection that the noble Lord, Lord Callanan, had to previous ones because, if all that was being done was changing terminology from EU law to EU retained law, clearly the test or certification referred to in Amendment 245A that the regulation did not,

“remove or diminish any protection provided by or under equalities legislation”,

would be quite easily met.

The noble Lord, Lord Low, indicated some of the background to this amendment. An amendment was brought forward in the House of Commons in response to concerns expressed by the Women and Equalities Select Committee. He also indicated that what the Government did in their response really did little more than to reiterate a public sector equality duty that was already there under the Equalities Act. One reason why we were concerned that that was an inadequate response was, as the Minister responding to this will be well aware, that the public sector equality duty goes much further than just the one that has been put in this Bill. Given that in bringing forward secondary legislation, Schedule 19 of the Equality Act 2010 indicates that the public sector equalities duty is on Ministers when bringing forward subordinate legislation, on the principle of inclusio unius exclusio alterius—

[Lord Willis of Knaresborough (LD)]

We talk of nothing else.

[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.