European Union (Withdrawal) Bill

Baroness Altmann Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

Will the Minister recognise the anxieties that I have identified and consider before Report—I am sure others will make the same request, driven by the extent of the powers the Bill—how a way can be found to restrict the correcting powers in the Bill from weakening rights related to maternity, paternity, adoption, parental rights or the rights of pregnant or breastfeeding women?

[Baroness Altmann (Con)]

My Lords, I support Amendments 40, 89A, 129A and 157A, to which I have added my name. I am grateful to the noble Baronesses, Lady Lister, Lady Drake, Lady Burt and Lady Greengross, whose names are also on the amendments. These amendments deal with issues that, as the noble Baroness, Lady Drake, so passionately and rightly said, will impact half the population of this country and would potentially reintroduce rights that would otherwise be lost for women, carers and parents. These measures have support from many groups representing women’s interests. I am grateful for briefings from the National Alliance of Women’s Organisations, Working Families, Carers UK and the Fawcett Society, among others. It is vital that we protect existing protections and equality law for women and carers, and maintain these protections into the future.

The EU has been a leader in equal rights for women. I am proud that the UK has been a principal player in Europe on this agenda. Measures such as rights for part-time workers, sex discrimination laws that put the burden of proof on the defendant and the right to request flexible working have all contributed to a far more female-friendly and family-friendly working environment for millions of employees across the UK. Brexit must not put women’s progress and prosperity at risk. It must also not dilute parental and paternity rights.

The Bill as drafted does not provide sufficient protection for hard-won equal rights that we have already attained. It introduces risks that rights will be weakened in future and fails to contain safeguards to ensure that the UK does not fall behind future EU advances on these issues. That is why these amendments seek to put in the Bill specific protections for the rights of important groups, including part-time workers and carers. The Government said that they intend to retain the current rights and protections, but why would they then resist putting them into the Bill explicitly? I hope that the Minister will come back on Report with his own proposals to this effect.

As we debated last week, the UK must not lose rights derived from the European Charter of Fundamental Rights. I suggest to my noble friend Lord True that the reason why there has been such a lengthy debate on individual areas of UK rights, including this series of amendments about women and carers—I echo the words of the noble Baroness, Lady Drake—is that the Government have chosen to exclude the charter of fundamental rights and unfortunately have raised suspicions that they seek to weaken rights after Brexit. Ministers must not be given powers that could enable them to bypass Parliament to weaken such rights. It is true that the charter covers rights contained in other UN treaties that have been ratified by the Government. However, those treaties are not incorporated into UK law. Therefore, they do not provide the same protections. These amendments aim to introduce specific safeguards into the Bill. I am sorry if my noble friend believes that these issues are not sufficiently worthy to be debated in this Chamber.

[Lord True]

I have made it absolutely clear that I consider these to be important issues. The points I made were entirely about the way in which progress is being made on this Bill. I would be extremely grateful if my noble friend did not impute to me things that I did not say and do not think.

[Baroness Altmann]

I am most reassured to hear my noble friend’s words, but it is unfortunate that that issue was raised on this set of amendments about women, with the suggestion of moving to the Moses Room. I assure him that there are many on these Benches and across the Chamber who believe these issues to be extremely important for our country.

Many noble Lords across the House are concerned that the UK must not fall behind on gender equality and women’s rights. As we have seen recently, there is still some way to go before we can say that we have achieved gender pay parity and there remains a need further to improve women’s rights. Sadly, I have seen all too often women’s issues fall under the radar of policymakers. There are many loopholes in UK law which penalise women predominantly. For example, in the area of pensions, part-time workers, usually women, still fall through cracks in both the national insurance and auto-enrolment pension systems, leaving them disadvantaged. Any weakening of women’s rights and protections is moving entirely in the wrong direction.

The new clause proposed by Amendment 40 would help protect us from falling behind the EU. A practical example is the directive on work/life balance for carers and parents which the EU will bring in but not until after March 2019. The majority of carers for elderly parents tend to be oldest daughters in their late 50s or early 60s—I declare an interest as one such. The forthcoming EU directive would introduce carer’s leave, which can be so important to help women who might otherwise have to leave work altogether. Women who stop work to care for loved ones when they are in their 50s or beyond usually never return to the workplace, denying them the chance of a richer retirement and wasting their valuable skills. Ensuring that we do not fall behind when the EU introduces protections for carer’s leave is extremely important for women. We should not weaken rights and protections which they would otherwise enjoy. The amendments would not force the Government to adopt new EU laws and regulations, but they would ensure that Parliament had the opportunity to protect the position of the UK and keep pace with, or even exceed, improvements in these areas in the EU in future.

This Bill and earlier debates this evening highlight vividly that the Government’s proposed legislation does not ensure the objective of transferring EU law into domestic law in all its aspects, nor does it achieve the same protections and rights as citizens have at the moment. There will be a watering-down, which is not appropriate for a country that has spent so much time and energy on enhancing the rights, protections and position of women, part-time workers, carers and families. To countenance measures that put those achievements at risk is unacceptable. I hope that the Government do not wish to risk the UK falling behind or moving backwards on these issues, and that my noble friend the Minister will return on Report with proposals of his own which can achieve the aims of the amendment.

[Baroness Crawley]

My Lords, I support the amendments in the names of my noble friends Lady Lister and Lady Drake. We could call this set of amendments “Keeping up with progressive forces” or “Ensuring UK women and families do not begin to lose out beyond the point of our exiting the EU”. My noble friend Lady Lister wants the Government closely to monitor, report on and replicate future EU developments in the area of family-friendly employment rights, gender equality and work/life balance for parents and carers, as the noble Baroness, Lady Altmann, has just said.

--- Later in debate ---

[Baroness Altmann]

My Lords, I support Amendment 43, moved by the noble Lord, Lord Davies, and supported by the noble Lords, Lord Foster and Lord Foulkes, and to which I have added my name. I also support the thrust of Amendments 44 and 45. I will try to be brief in light of the hour.

Amendment 43 aims to ensure that the Government maintain their pledge not to water down rights if we leave the EU. I do not see why the Bill needs to explicitly remove the right to Francovich protection, which allows citizens—individuals and small businesses—to sue the Government for damages resulting from past breaches of EU law. I hope that my noble friend the Minister will reconsider the removal of this protection; otherwise, we will lose a key last-bastion protection for citizens and small businesses, which allows them some remedy against harm caused to them by government policy.

The Government say that people will still be able to sue in the UK courts, but in practice this power is not normally exercisable. I have personal involvement in this area and have seen how difficult it is to mount a legal challenge against the Government. A judicial review must be launched within a very short timescale, which most ordinary individuals would struggle to meet. When I was helping the 150,000 members of final salary pension schemes, including Dexion and Allied Steel and Wire, who had lost their entire company pension and part of their state pension as a result of flawed laws which failed to properly protect their pension rights when their company became insolvent, despite being obliged to do so by the EU insolvency directive, I had to find lawyers who would work on a no win, no fee basis. Even then, the Government refused to agree not to pursue the claimants for their costs if we lost. These poor claimants faced losing all their assets, including their home, when taking the Government to court. Realistically, most people simply could not take such pressure.

It is unreasonable to remove the last-resort protection that such people have, which would allow them to appeal to the EU courts under Francovich protection for a ruling which would not risk the same costs and difficulties as a UK court action against the Government. If an EU directive was implemented wrongly, and the Government had not introduced sufficient protections, despite being obliged to do so, the amendment would ensure that the Bill does not remove people’s last resort to redress. I hope that the Government will agree to this amendment or produce their own version.

[Lord Foster of Bath (LD)]

My Lords, I have added my name to Amendment 43, and I support Amendments 44 and 45. I begin by disagreeing slightly with the noble Lord, Lord Carlile. I suspect that I am in a minority: those of us who are not lawyers.

However, I am very conscious that during our deliberations so far we have heard many times that the Bill is intended to ensure that,

“as a general rule, the same rules and laws will apply after we leave the EU as they did before”.

About an hour ago we heard a very powerful reiteration of that from the noble Lord, Lord Duncan, who made it very clear that he believes what the Government seek to achieve. Yet that has to be put alongside the continuing concern in the other place and in many parts of your Lordships’ House that somehow or other Schedule 1 provides the Government with a get out of jail free card—an opportunity to have a series of measures which appear at least to curtail some of the legal rights and remedies we have enjoyed as a result of our membership of the European Union. A glaring example of that was well illustrated by the noble Lords, Lord Davies and Lord Carlile, and the noble Baroness, Lady Altmann, and is contained in paragraph 4 of Schedule 1 in relation to Francovich.

As the noble Lord, Lord Carlile, rightly pointed out, Francovich is not just some right whereby anybody who feels slightly aggrieved by their Government not properly implementing some piece of EU legislation can immediately start action. Three clear criteria have to be met and have already been laid out: that there are rights conferred on an individual, that the breach was sufficiently serious, and that there is a clear causal connection between the breach and the damage sustained by the individual.

It seems clear, at least to me as a non-lawyer, that if paragraph 4 of Schedule 1 remains in the Bill, no retrospective claims under Francovich will be permitted, and certainly not if the proceedings have not been started before exit. In those cases, individuals will lose their ability to claim damages against the state for failure to implement EU laws and directives issued pre-exit. This would mean that the victim of a government failure to correctly implement an EU law must have started action before exit day, but that will not always have been possible and would seem contrary to natural justice. Access to justice, including the ability to challenge the actions of the state before a court of law, is central to the rule of law. If paragraph 4 of Schedule 1 remains as it stands, it seems that access to justice for some people will be denied.

I was in your Lordships’ House some 10 days ago when we heard during exchanges on the Statement on air quality that the High Court had ruled that the Government’s air quality plan, designed to tackle nitrogen dioxide in the air, was unlawful. The Court ruling said:

“It is now eight years since compliance with the 2008 Directive should have been achieved. This is the third, unsuccessful, attempt the Government has made at devising”,


an air quality plan,

“which complies with the Directive and the domestic Regulations."

The judge, Mr Justice Garnham, added,

“In the meanwhile, UK citizens have been exposed to significant health risks”.


It may be that some individuals will wish to argue, under the rule of Francovich, that they have suffered damage and deserve compensation because of the Government’s failure to implement the 2008 directive. Without Amendment 43, or some similar measure, such individuals will be prevented from seeking justice unless they submit their claim and have their case under way before exit day.

In the other place, many other examples of potential loss of access to justice under Francovich were raised. Initially the Minister there, Dominic Raab, offered assurances that:

“Individuals will not lose their ability to vindicate their rights in court after exit”.—[Official Report, Commons, 14/11/17; col. 290.]


It may be—I have no way of knowing—that he believes that to be the case because of Section 16 of the Interpretation Act 1978, which provides that,

“where an Act repeals an enactment, the repeal does not, unless the contrary intention appears ... affect any right, privilege, obligation or liability … accrued or incurred under that enactment”.

So the right to claim under the rule of Francovich post-exit would seem to depend on whether the Bill before us provides an effective and clear contrary intention. Can the Minister tell us clearly whether the Government believe that paragraph 4 of Schedule 1 provides a clear contrary intention, within the meaning of Section 16 of the Interpretation Act 1978?

Certainly, there are some other lawyers who appear very uncertain about that point. For example, the very helpful briefing from James Segan of Blackstone Chambers leads me to conclude that seeking justice by arguing that there was no contrary intention or that it had been introduced ineffectively would lead litigants into a legal quagmire, so I was slightly heartened when in the other place a little later in the deliberations the Minister changed his tune when pressed by, among others, Conservative MPs Robert Neill, Dame Cheryl Gillan and Sir Oliver Letwin. He told them that he acknowledged the importance of legitimate expectations and agreed to see whether these concerns could be addressed, at least transitorily, by regulation rather than in the Bill. I hope that the Minister can update us on progress on that thinking. He has already said in relation to other aspects of Schedule 1 that the Government are willing to do that.

I would have thought that by far the better route to securing the continuation of the rights under Francovich would be to accept Amendment 43 or something like it, and ensure that the Bill makes it clear that when the Government say that the same rules and laws will apply after we leave the EU, they really mean it.