Equality (Amendment and Revocation) (EU Exit) Regulations 2018

Baroness Barran Excerpts

Tuesday 29th January 2019 Grand Committee

Moved by

[Baroness Barran]

That the Grand Committee do consider the Equality (Amendment and Revocation) (EU Exit) Regulations 2018

[Baroness Barran (Con)]

My Lords, I am honoured to present to the Committee the Equality (Amendment and Revocation) (EU Exit) Regulations 2018. This statutory instrument, in common with many others currently proceeding through this House and the other place, is necessary to enable the Government to ensure that the equalities statute book remains appropriate as we leave the European Union.

The regulations make purely technical changes to the Acts listed and ensure that our equalities legislation continues to operate effectively after exit day. They are wholly consistent with our commitment to upholding equalities protections across the United Kingdom as we leave the European Union, including those previously conferred by EU law, which have now been incorporated into domestic law through the European Union (Withdrawal) Act 2018. This commitment was most recently repeated by the Prime Minister in the other place on 21 January, when she guaranteed that,

“not only will we not erode protections for workers’ rights … but we will ensure this country leads the way”.—[Official Report, Commons, 21/1/19; col. 1258WS.]

A majority of the amendments are to the Equality Act 2010, an Act that constitutes one of the strongest pieces of equalities legislation in the world. That includes provisions to provide comprehensive protections from discrimination, harassment and victimisation on the grounds of nine protected characteristics. We are determined to ensure that the 2010 Act will continue to give certainty and continuity to, among others, employees, employers and service users, creating a stable environment in which the UK economy can grow and thrive. By passing the regulations, Parliament would ensure that those hard-won protections continue to operate after we have left the European Union. These regulations are purely concerned with ensuring that the legislation remains fit for purpose, by removing or replacing references relating to the European Union, its laws and institutions that will become redundant at the point of exit. This package of changes additionally includes the revocation of two pieces of peripheral, and in one case entirely moribund, retained direct EU law.

I am unsure how much detail the Committee may require about the proposed changes, many of which are merely the replacement or removal of one or two words. It would not be practical to address every change in this speech, but if noble Lords have questions about specific regulations, I will endeavour to address those in my closing remarks.

For the time being, it may assist the Committee if I set out the legislation being amended, together with an example for the purposes of illustration. The draft instrument amends: references to enforceable EU rights, references to EU law and the European Economic Area, and specific EU directives and harmonisation provisions. These provisions will become deficient after we leave the EU unless they are amended. While a majority of amendments are to the Equality Act 2010, the regulations also contain amendments to: the Civil Partnership Act 2004, the Gender Recognition Act 2004 and the Equality Act 2006—which establishes the Equality and Human Rights Commission, its governance arrangements and powers at its disposal.

The regulations also amend, in a minor way, the Equality Act 2010 (Amendment) Regulations 2012, which implement a 2011 ruling of the Court of Justice of the European Union that sex should not be used as a risk factor in determining individuals’ insurance premiums and benefits—the Test Achats ruling. A further regulation then replicates this change in the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2012. This is the only change to Northern Ireland legislation proposed in these regulations.

At this juncture it may be helpful to the Committee if I mention our approach on devolution when preparing this instrument. The amendments to the Civil Partnership Act and Gender Recognition Act relate to policy areas within the competency of the Scottish Parliament, and accordingly we have worked closely with the Scottish Government, and through them, the Scottish Parliament, to ensure there is agreement and to secure the necessary legislative consent. We have also consulted the Welsh Government on these regulations.

Importantly, we have also consulted the Equality and Human Rights Commission in the preparation of these regulations, to ensure it agrees with the legislative need for the changes and that it is content with the approach taken overall, and, in particular, in relation to the amendment that impacts the commission.

Lastly, I will briefly address the two pieces of retained direct EU legislation that we are proposing be revoked. One is Regulation 1922 of 2006, which established the structure and governance of the European Institute for Gender Equality—the research papers for that institute are available on the web. The regulations simply concern the structure of the organisation, which will not be of relevance to us following our exit. The other is Decision 771 of 2006, which established the European Year of Equal Opportunities for All of 2007. As the title suggests, this is outdated and no longer has any practical implication.

I draw noble Lords’ attention to the equalities transparency statement in the annexe to the Explanatory Memorandum. This is prepared in line with the commitment that the Government gave during the passage of the European Union (Withdrawal) Act that every EU exit-related statutory instrument would state whether and, if so, how it amends the Equality Acts of 2006 and 2010. Unlike the vast majority of such SIs, these regulations amend those Acts, and this fact and its effects are duly recorded in the statement.

In conclusion, I hope that noble Lords will recognise that the regulations in this statutory instrument are intended solely for the purpose of correcting deficient or redundant provisions in the legislation that I have outlined. Put simply, this legislation will no longer work exactly as Parliament intended once we have left the EU if this SI is not passed into law. Without making these small technical changes, we would risk leaving in place legislation that is no longer fit for purpose, at best, and which simply does not operate effectively, at worst. I beg to move.

[Baroness Gale (Lab)]

My Lords, I thank the Minister for the full explanation she has given as to why this SI is before us today and why it is necessary, and for outlining the parts of the regulations that have been revoked and the reasons for that. We support this technical statutory instrument, and I am pleased that this action is being taken now. No doubt the Minister is aware of the concern of the #FaceHerFuture campaign that the UK could fall behind on gender equality once we leave the EU. Will she say what measures the Government will take to ensure that we keep pace with the EU to maintain gender equality? We need a broad commitment from the Government to set out a positive post-Brexit agenda for the promotion of women’s and girls’ rights and gender equality; to ensure that the UK keeps pace with EU measures that maintain gender, race and LGBT equality; and to ensure that women’s services providers, including women’s refuges and other domestic abuse services, receive stable funding. That must remain on the agenda. The UK Shared Prosperity Fund must ensure adequate funding for women’s services.

The Explanatory Memorandum states,

“removing these references will not alter the present effect of EU law domestically in the field of equalities, which the Government is committed to retaining under the principle of ‘non-regression’”.

That is good news, and I hope that it will continue after we leave the EU. If the principle of non-regression is to be maintained after we leave the EU, will the Minister ensure that your Lordships’ House is provided with the information necessary to keep pace with the EU in all matters relating to equalities? Will the Government act on that information if it suits our legislation? I believe this is necessary in order that we do not fall behind the EU in equality for all. I look forward to the Minister’s response and I thank her for explaining this SI.

--- Later in debate ---

[Baroness Hussein-Ece]

I was just concluding but I am very grateful to the noble Lord, who I know has himself been pivotal in equality. In fact he was my MP at one time, and I remember that he was in the vanguard of changes in equality legislation.

I have many more examples, which I shall not itemise today, but we are looking for an example like that. There might be something in future involving the rights of people who need protecting. Where do we go for that if the Government of the day are not interested or do not see it as a priority? What will be put in place to ensure that future generations have the same protections that we have enjoyed?

[Baroness Barran]

My Lords, this has been a very constructive and heartfelt debate, and I thank noble Lords for their helpful points regarding both a recognition of the progress made in this country over many years in relation to equalities and the challenges that we face in future. I hope that noble Lords are reassured to some extent by my opening remarks about the nature of the proposed amendments in this specific instrument, as a number of the points raised are obviously broader than its scope. These changes are necessary to ensure a properly functioning statute book after EU exit while not in themselves amounting to substantive changes in policy.

I shall deal with a number of the points raised by noble Lords. The noble Baroness, Lady Gale, asked how we will keep pace with the EU to maintain gender equality specifically, while the noble Baroness, Lady Hussein-Ece, and my noble friend Lord Deben raised broader points in that regard. I reassure all noble Lords that we are committed to keeping all the protections in the Equality Act 2006 and the Equality Act 2010, which include gender equality but also go much broader.

My honourable friend the Minister said last week in the debate on this instrument in the other place that from the date we leave the EU, the UK will be free to set its own priorities, including those on gender equality and women’s rights. The UK has often been in the vanguard of developing new legislation and policies that support women in the workplace, tackling violence against women and girls, and ensuring that women are represented in political and public life. Our recent regulations, for example, requiring employers to publish their gender pay gap go further than anything required by the EU or any other member state. The other area where this country differs in a very positive way from the rest of the EU, is in relation to the public sector equality duty. I hope that noble Lords will reflect on the balance; there are definitely areas where this country is significantly ahead in terms of equality legislation.

[Lord Deben]

My Lords, all that is very true and I am proud of what this Government have done in both of the areas to which my noble friend refers, but could she explain why we have not transcribed into British law the requirements of the document to which the noble Baroness, Lady Hussein-Ece, referred? Those are the fundamental rights. We may be free to make changes, but humans in this country are no longer free to take the Government to court. We are losing a basic right. This is not a freedom at all.

[Baroness Barran]

If my noble friend will be patient, I will cover that point in a moment.

We will continue to engage with leading academics across Europe and internationally, bringing together the latest research on what works to deliver gender equality in the workplace through our Workplace and Gender Equality Research programme and our Gender & Behavioural Insights programme. Once we leave the EU, we will remain close to our European colleagues. We will continue to share good practice, collaborate with others and follow developments in Europe closely—a point which my noble friend Lord Deben questioned. The EHRC will remain part of Equinet, which is the European Network of Equality Bodies, and continue to be engaged with their work. Through bodies such as the Council of Europe, where a UK official now chairs an important gender equality body, the ILO and the UN, we will ensure that we are engaged with institutions and countries that are committed to achieving gender equality and the empowerment of all women and girls.

The noble Baroness, Lady Gale also asked about funding for specialist women’s services. She will know that this is a cause dear to my heart and I understand very well why she raises this point. The Government are absolutely committed to protecting victims of domestic abuse. Since 2014, MHCLG will have invested £55.5 million in services to support victims of domestic abuse, which includes funding refuges. The department is carrying out a review of how domestic abuse services are commissioned locally and funded across England. The review has been informed by an audit undertaken by Ipsos MORI for the provision of domestic abuse services across England which will enable us to understand what impact they are having and identify any gaps. MHCLG is also working with the domestic abuse sector and local authorities, drawing on their expertise and data, to develop sustainable delivery options for domestic abuse services in future. The noble Baroness will, I know, also welcome the introduction in the other place of the draft Domestic Abuse Bill, which I am sure will provide an opportunity to address some of these issues.

She also asked about the issues of non-regression and how this House will be kept updated. As I have already said, the Government are absolutely committed not to roll back workers’ rights when we leave the EU. This has been confirmed most recently by my right honourable friend the Prime Minister. I cannot ensure that your Lordships’ House will be updated formally with changes in EU equalities law. Obviously, the Equality and Human Rights Commission and the Women and Equalities Select Committee will continue their important work and produce their reports, which noble Lords will be interested to follow.

The noble Baroness asked for an assurance about the shared prosperity fund. We will be consulting on this and are concerned to ensure that disadvantaged groups are not left out of the fund. I am pleased to say that the Government Equalities Office is discussing gender issues, which are clearly very relevant here, with those in government leading on the fund.

My noble friend Lord Deben asked me to explain paragraph 3.2 of the Explanatory Memorandum—

[Lord Deben]

Paragraph 3.10.

[Baroness Barran]

I am sorry. Paragraph 3.10, which relates to Regulation 5(9)—I have to warn the noble Lord that this may not shed entire light on the matter—states:

“Regulation 5(9) amends Schedule 23 to the Equality Act 2010. This provision currently contains an exemption which allows a training provider to provide training to a person who is not ordinarily resident in the European Economic Area (EEA) where the training provider thinks that the training recipient does not intend to exercise the skills obtained in this country. The amendment recognises that the UK will not form part of the EEA after exit day and so ensures that this exception now applies to any country outside Great Britain”.


If the noble Lord would like me to write to him to clarify that any further, I would be delighted to do so.

The noble Lord also asked about future trading arrangements. I cannot speak for any future Government, but this Government have absolutely no intention of diluting workers’ rights, which was noted by my right honourable friend the Prime Minister very recently, as I mentioned. He also questioned whether we were trying to “diminish the debate”—I think those were the noble Lord’s words. I will try not to say the “M” word, but I am trying to focus only on the specifics of this statutory instrument. To repeat the words of my right honourable friend the Minister for Women and Equalities in the other place, this gives us a chance to choose our priorities going forward. It is really important that all noble Lords acknowledge the leadership we have shown. I have a table here that shows a number of areas, particularly in relation to goods and services, where this country is leading the way in rights. I already mentioned the public sector equality duty.

Turning to the questions of the noble Baroness about the Charter of Fundamental Rights and wider human rights issues, this statutory instrument does not have any bearing on the charter, which applies only to EU law or EU-derived law. It catalogues a range of EU rights and principles, the original sources of which are found elsewhere in EU law. The charter itself is not needed after EU exit because EU law, which is the source of these rights, will be copied on to our domestic statute book. I hope that the noble Baroness may take some reassurance from the fact that the Women and Equalities Committee acknowledged this in its 2016 inquiry, agreeing that,

“it would be difficult to apply the Charter so that it would function in a domestic context alone”.

In addition, the protections from the European Convention on Human Rights, which have been given further domestic effect by the Human Rights Act 1998, are unaffected by EU exit. The noble Baroness also raised a number of other issues, but if she will forgive me, I will just pick one, in relation to equal pay protections. These existed in Great Britain long before any EU rules were introduced and the European Union (Withdrawal) Act 2018 will retain Article 157 of the treaty of fundamental rights of the European Union in domestic law.