European Union (Withdrawal) Bill

Baroness Lister of Burtersett Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Cavendish of Furness (Con)]

My Lords, if I may, I will give another non-legal observation. It is a pleasure to follow the noble Lord, Lord Howarth, whose speech I agree with—and how very eloquent it was.

It is a regret of mine to live in an age which is so much obsessed with human rights and so little concerned with human responsibilities. Saving their presence, I rather think that the spiritual Bench below me might reflect on how little it has succeeded in teaching the parable of the good Samaritan and similar stories. Collectively, those stories almost do away on their own with the provisions of the absurd CFR. My point is that the good Samaritan behaved as he did of his own volition, not because he was told to by a bunch of lawyers and professional politicians. We tend to look at social problems through the wrong end of the telescope: we need a change of culture, not another set of often duplicated rights.

Specifically, as has been mentioned, the charter is EU-specific and EU-centric. It would therefore need extensive retailoring to fit in with our own laws. To a layman, a major defect—as again has been mentioned—of placing CFR into UK law is that it would empower courts to disapply Acts of Parliament. The noble Lord, Lord Pannick, tried to deal with this, but he did not deal with it accurately; I will, however, leave that to other lawyers. To disapply a law is different from us changing a law when it comes on to our statute book in due process. It strikes me as inevitable that such a move would conflict with the Human Rights Act, the ECHR, our own common law or all three.

The charter has come in for criticism over the years from Tony Blair, Alastair Campbell, the noble Lord, Lord Hain—who is, sensibly, not in his place—and, most notably, the noble and learned Lord, Lord Goldsmith. It was also eloquently attacked by my right honourable friend Kenneth Clarke. Why was there a change of heart? It was never explained before, and I look forward to hearing why there is a change of heart now.

Some of the provisions are so woolly and aspirational as to render them unsuitable and even dangerous if incorporated into our own law. They include the right to respect for physical and mental integrity and the right to pursue an occupation and a guarantee of a high level of environmental protection. Those are not the sort of things that ought to appear in this sort of document. Such vagueness is surely an invitation to what has been described as judicial adventurism in the courts.

I have no intention, of course, of putting in jeopardy the livelihood of the noble Lord, Lord Pannick, although I strongly disagree with him that his amendment adds certainty. The charter mounts to virtue signalling on an industrial scale. Governments need to govern, not to rehearse constantly how virtuous they are. It is time that we destroyed this amendment and voted it down.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support the amendment and would like to return to three points that I raised in Committee that Ministers have not adequately addressed.

First, I have asked four times how the fundamental requirement in the Good Friday agreement for an equivalent level of human rights protection in Northern Ireland and the Republic will be maintained if citizens of Northern Ireland can no longer look to the charter. The only substantive response that I have received so far was the irrelevant and erroneous point that, because the Good Friday agreement preceded the charter, it will not be affected by it. That is entirely to miss the point, because as I and other noble Lords, including my noble friend Lady Smith of Basildon, have said time and again the point is about equivalence. For the fifth time now, how will the foundational Good Friday agreement principle of equivalence of human rights protection be maintained in the absence of the charter? I can only conclude that I still have not received a convincing answer because there is no convincing answer.

Secondly, I asked the Minister in Committee whether he rejected the analysis of the Joint Committee on Human Rights of the Government’s right by right analysis, which identified a number of rights that will be lost in the absence of the charter. I draw attention in particular to children’s rights, to which we will be returning later at Report. It is a particularly important matter. The JCHR analysis said:

“Article 24 of the charter sets out the rights of the child. The Government states that the source of this right is the UN Convention on the Rights of the Child. This is not incorporated into domestic law and therefore does not confer enforceable rights upon individuals”.


The Minister’s response was:

“We have considered that analysis, and that is why I indicated that we were still looking at this. As I said, if rights are identified which are not in fact going to be incorporated into our domestic law in the absence of the charter, we will look very carefully at ensuring that those are not lost”.—[Official Report, 26/2/18; col. 570.]


The noble Lord, Lord Pannick, has already referred to the fact that certain rights will be lost. What has happened to this careful look again? I have not seen the government amendment which will ensure that we keep these rights. Not only the Joint Committee on Human Rights but the Equality and Human Rights Commission, as the noble Lord, Lord Pannick, said, the Bingham Centre and many others have identified a series of rights that will be lost. Does the Minister reject the Joint Committee on Human Rights’ analysis, the legal opinion given to the Equality and Human Rights Commission and everything that the highly respected Bingham Centre has said on this? What are the Government going to do about the rights that we will no longer have if we lose the charter?

Thirdly, in response to a claim by the noble Lord, Lord Faulks, that the Government have made clear that they have no intention of repealing the Human Rights Act, I quoted the last Conservative manifesto—bedtime reading for me, of course—which stated:

“we will consider our human rights legal framework when the process of leaving the EU concludes”.

I asked the Minister for an assurance about the Conservative Party’s long-term commitment to the Human Rights Act, but answer came there none. If the Government are planning to consider the human rights legal framework post Brexit, surely that is the time to look at the charter so that Parliament—I take the point made by my noble friend Lord Howarth, although he is perhaps not quite such a friend at this moment—can look at the whole human rights landscape holistically. That is when we should consider what happens to the future of the charter.

[Baroness Deech (CB)]

My Lords, there are good legal reasons to oppose this group of amendments. I will be brief. I shall not go into equivalence; for example, we already have child protection in English law.

First, we never intended to adopt the charter and did our best to opt out. It has never been analysed, debated or adopted by this House or indeed the other place. It entered our law only in 2013 after being rejected as unnecessary and confusing. It is badly drafted with its references to principles and other rights. Article 3, which refers to the prohibition of eugenic practices and the selection of persons, whatever that means, could be used by those who oppose embryo and stem cell research to block our leadership in that field. The wording in that article is more suitable for the much more conservative, unregulated and, indeed, backward European practices. The articles relating to dignity and scientific research are vague and woolly. Its scope and application are uncertain and meant for European institutions, not individual rights. Interpretation of the charter, if retained, would be a bonanza for lawyers involved in litigation. I can see decades of lucrative litigation stretching ahead, and I point out that I am not a practising lawyer.

Secondly, it offends against the rule of law and parliamentary sovereignty, in that it would allow our judges to invalidate British law, not just to declare it incompatible with human rights or to treat other laws as having priority but to set it aside and nullify it. If you believe in parliamentary sovereignty now and its full recovery after Brexit, if you believe that this House should make and unmake laws, while judges interpret and apply them, then the power to set aside our laws is unacceptable. It is in Article 51(1) of the charter and has been used on at least one occasion—with unfortunate results, as my noble and learned friend Lord Brown has just pointed out. The charter’s continuance would elevate judicial policy views over the elected Parliament and give judges the very contentious interpretation powers that they have indicated they do not wish to have in relation to EU law. This is the reason for opposing the amendment put forward by the noble Lord, Lord Faulks. Although one can understand where he is coming from, the interpretation of scope would be a nightmare, and cherry picking, as both amendments do, is surely not allowed in European areas.

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Moved by

[Baroness Lister of Burtersett]

17: After Clause 5, insert the following new Clause—
“Future provisions relating to family friendly employment rights, gender equality and work-life balance for parents and carers
(1) A Minister of the Crown must, as soon as reasonably practicable, report to both Houses of Parliament whenever new or amended EU law in the area of family friendly employment rights, gender equality and work-life balance for parents and carers would have amended provisions or definitions in domestic law had the United Kingdom remained a member of the EU or the European Economic Area (the “EEA”) beyond exit day.(2) Having reported to both Houses of Parliament, the Minister must consider whether to seek to incorporate those amended provisions or definitions into domestic law, in order to ensure that there is no material reduction of gender equality and employment rights as a result of the United Kingdom exiting the EU or EEA and that those working in the United Kingdom have at least the same gender equality and employment rights and protections as they would have had if the United Kingdom had remained in the EU or EEA.(3) New or amended EU law for the purposes of this section includes but is not limited to—(a) any future EU directives relating to family friendly employment rights, including but not limited to rights for pregnant workers and employees, and those returning from maternity, paternity and parental leave; (b) any future EU directives relating to gender equality;(c) the proposed directive of the European Parliament and of the Council on work life balance for parents and carers.(4) Reports presented under subsection (1) must include—(a) an assessment of how such amendments to domestic law would have impacted gender equality and work life balance in the United Kingdom had the United Kingdom remained a member of the EU or EEA beyond exit day, and(b) an assessment of how not implementing amended provisions or definitions in domestic law will impact gender equality and work life balance in the United Kingdom.”

[Baroness Lister of Burtersett]

My Lords, Amendment 17 simply requires the Government: first, to report to Parliament on developments in EU law in the areas of family-friendly employment rights, gender equality and work-life balance for parents and carers which would have affected UK legislation had we remained in the EU; and then to consider whether they should incorporate these changes into domestic law to ensure that such rights are not diminished or are no less than they would have been were the UK still a member of the EU. What it does not do is bind the UK into implementing future EU law. It is supported by a number of organisations, in particular Working Families, whose assistance I am grateful for.

In Committee, I warned that I might want to return to this issue because, for all the Minister’s very positive words about dilution of existing rights in this area, and in particular his very welcome assurances on the working time directive, he gave no argument why the Government could not accept this amendment, or something on similar lines. Yet, from everything he said last time, I can see nothing in this amendment with which the Government might disagree. Of course, it does not mean that future Governments cannot also look elsewhere for policy inspiration, but given that this Bill is about what happens when we leave the EU it is only right that the amendment is confined to future developments in the EU. Moreover, we remain a member of the European family, which has always been a leader in such matters.

Noble Lords will be relieved to hear that I do not intend to repeat the substantive arguments I put in Committee, other than to produce two new pieces of evidence in support. The first relates to the discussion we had around the extent to which the UK has been a leader or follower in this area. It is a newly published analysis of the development of the EU gender equality framework conducted by two leading scholars from Manchester University. It challenges the rather rosy picture painted by the Minister in Committee and in a subsequent letter, for which I am grateful. I am also grateful for the meeting that we had earlier today, which was very helpful. In summary, the researchers note that,

“far from being a pace setter in the area of European gender equality law, the UK has usually sought to stall, dilute or divert legal measures”.

They conclude that,

“decoupling from the EU’s equality framework due to Brexit will harm the pursuit of gender equality in the UK”,

and risks,

“a more insular approach to policy design”.

This amendment is designed to avoid just such an outcome, and it could be of particular significance in Northern Ireland, where there could be real problems if employment rights diverge in future across the island of Ireland.

The second piece of evidence is the recent report of the Women and Equalities Select Committee, Fathers and the Workplace, which provides strong support for the kind of improved parental leave provisions for fathers contained in the draft work/life balance directive. I accept that the directive is still at proposal stage, as the Minister pointed out in Committee, but that does not invalidate the case for considering it once we have left the EU. Indeed, it makes it more likely that it will be too late for us to be bound by it.

In Committee, the Minister summed up fears that the Government will use the opportunity of Brexit to cast rights aside with the metaphor of scraping,

“the barnacles off the boat to allow the ship to move faster”.

He then assured the Committee that these rights,

“are integral parts of the engine of the ship and we shall not be discarding them”.—[Official Report, 5/3/18; col. 953.]

That was very welcome. But this amendment is not about existing rights, crucial as they are. It is about where we go from here. Surely we want to keep the engine fine-tuned in future so that it keeps up with other ships in European waters on these issues, the importance of which he himself underlined. Indeed, it is difficult to see why the Government would not want to appear forward-looking and open-minded when steering the ship into post-Brexit waters, especially in view of recent public attitudes research by the IPPR that indicates strong public support for continued alignment with the European economic and social model.

I therefore seek two further assurances: first, that the Government will undertake to meet the spirit of the amendment after we have left the EU and, secondly, that in particular they will give serious consideration to whatever emerges from current negotiations on the work/life balance directive, and give Parliament an opportunity to consider it. If the Minister is unable to give those very modest assurances, I ask him to give a clear explanation as to why not. As it is, I am afraid that the Government will send a very negative message to the parents and carers of this country who are struggling to balance paid work with their caring responsibilities, and to the many organisations looking for reassurance about the country’s future direction on family-friendly employment rights, gender equality and work/life balance for parents and carers. Refusal would also cast doubt on the Brexit Secretary’s recent claim that Britain will remain a dynamic and open country and that we will lead a race to the top in global standards. Those are fine words; this amendment will go some small way to turn them into deeds. I beg to move.

[Baroness Crawley (Lab)]

I underline my noble friend’s point about the enthusiasm with which the Minister told us in Committee that there would be no dilution of these rights and that it is the Government’s intention that these rights would be the foundation for an ever-developing family-friendly agenda that they want to advance. Yet the Minister did not give my noble friend or any of us involved in that Committee any idea why the Government do not want to monitor evolving EU law in this area. Surely, if we want to be in the vanguard of EU law we have to be able to monitor it. Why can we not do that? It is such a modest ask.

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[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

I thank the noble Baronesses for their contributions. I believe, and am comfortable saying, that when we exit the EU the corpus of EU law on which we will build our foundations will be a strong one. At our last gathering, I was able to give assurances on the working time directive, which I hope were welcomed on all sides of the House. The key aspect here is simple: we should not solely be looking towards the EU as we consider what is happening on the wider question of family-friendly employment.

I had a pleasant discussion earlier today with the noble Baroness on the key elements of the amendment. She knows that I am not able to give the words of comfort that she is looking for, but I am able to give different ones. They are not specific to the Bill but are, more broadly, about what the Government intend to do and how we will do it. I will iterate those in due course. For example, the work-life balance directive is at present in its very early stages in the European Union. Because of where it is in the process, there is every prospect that it will not have secured enough progress before the European Parliament rises for the elections. Thereafter it will have to be retabled and greater time spent bringing it back to its current state. I would much prefer that the elements contained in that directive were taken forward by the Government in good time and good order. Post Brexit, it must be our ambition not to await what others are achieving but to see the direction in which they are facing and move as quickly as we can. Your Lordships’ House, and the lower House, must be at the forefront of these endeavours.

I spoke in Committee about these policies not being barnacles on the boat. It is absolutely clear to me that they do not drag us back; they are integral to the engine that drives us forward. Equally, it is important that the committees of both Houses recognise their roles both in holding the Government to account and in casting their eyes as widely as they can to initiatives, policies and case studies that make a difference across the globe. There is much that we can learn, not just from the EU but from its member states. For example, it is not the EU itself but some member states inside it that are driving forward wider LGBT issues. Malta and the Netherlands are pushing far beyond where the EU stands, as are we ourselves. Looking at some of the wider gender equality issues, I would never paint where we are as rosy. Until we have reached absolute parity and certainty, there are not enough roses in the garden to say that. It is always a journey and we need to be moving toward that. We can learn lessons from examples across the globe. I hope that committees of this House and the other place are able to act as the antennae, seeing and hearing what is out there; to develop invaluable reports; and to hold the Government to account for recognising what those reports can achieve as we cast our eyes more broadly.

I cannot give the words of comfort on the amendment that the noble Baroness would like. In some respects, I am disappointed that I cannot. However, I commit, on behalf of the Government, to meet the noble Baroness, and to write to her and other noble Lords, setting out clearly and exactly what the UK Government intend to do in this area, where we are, what the rights are that we need to move forward on and how we intend to do that. I suggest that that happens regularly, not just once. The regularity and frequency has yet to be determined but I suggest that we have a dialogue about it. The noble Baroness will be aware that I am not the lead Minister on this, just the lead Bill Minister in this area, but I am committing, on behalf of my colleagues in the Government, to fulfil that obligation. I hope that will give some comfort. This is a journey and we are not yet far enough along. I am sorry to disappoint the noble Baroness on this occasion, but I cannot give her the words of comfort she would prefer to hear on the specifics of her amendment.

[Baroness Lister of Burtersett]

My Lords, I am very grateful to those who have spoken in support of the amendment, particularly the noble Baroness, Lady Altmann, from the Benches opposite. They all used the word “reassurance” and, as he said, the Minister does not feel able to give me the reassurance I was seeking. I understand that, but welcome the fact that he has tried to go as far as he can. In a sense, he has implicitly acknowledged the case, even if he is not giving me reassurance. At the outset, I made it clear that this in no way stops us looking to other countries as well as to the EU, but we are—and will still be—a member of the European family. I will always be a European, as we all will, and that is where we should look first.

I welcome the Minister’s commitment on behalf of the Government. It is not just about meeting with me. I suggest a formal or informal all-party grouping of Peers who have supported the amendment, such as the noble Baroness, Lady Altmann, and organisations such as Working Families, to take this forward. Once the Bill is out of the way, perhaps we could have a meeting to discuss the appropriate mechanisms to do that. None of us can speak on behalf of committees and so forth, but if we are able to map out a possible way it would give us something.

I am disappointed, but I did not expect that much. I take a few crumbs of comfort from what the Minister has said and I am grateful to him. I hope that, once the Bill is out of the way, we can use those crumbs to build something of a loaf. With that dreadful metaphor, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

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[Lord Low of Dalston]

My Lords, despite the Government’s political commitment that equality rights that currently come from Europe will continue once the UK leaves the EU, there is a risk that without embedding the principle of non-regression in the Bill, these rights could be undermined in the future once the minimum standards set by EU law are no longer binding on the United Kingdom. The Women and Equalities Select Committee recognised this risk and recommended that the Bill should explicitly commit to maintaining current levels of equality protection.

The proposed new clause would respect the UK’s constitutional position by applying the same approach as in the Human Rights Act 1998, as we have heard from the noble and learned Lord, Lord Wallace. In particular, it respects parliamentary sovereignty because it would limit the role of the court in relation to primary legislation to making a declaration of incompatibility, rather than invalidating or striking down legislation, as is currently possible under EU law. In that sense, what the new clause proposes is in fact weaker than the current level of protection for equality rights derived from EU law.

What rights might be at risk? While we in Britain should be proud that we have some of the strongest equality law in the world, and in many areas have gone before and beyond what EU law required, some of our important current protections have been driven by developments at European level. Even those that originated in domestic law are often underpinned by EU law. For that reason, they cannot be reduced while we remain in the EU. So when the underpinning of EU law is taken away, there is a real risk that a future Government could seek to chip away at our existing protections. We have already seen this in the Red Tape Challenge, which the noble and learned Lord referred to, under the coalition Government, when the existence of the EU safety net protected much of the Equality Act 2010, but we still saw provisions outside the EU directives being attacked and, in some cases, repealed.

Some of these protections, particularly those that are perceived as financially costly or burdensome to business, might be more vulnerable to repeal under a future post-Brexit Government. Risks that commentators have identified include: the reintroduction of a cap on compensation for discrimination at work; undermining aspects of the prohibition on unfavourable treatment related to pregnancy, which currently reflects the EU position; and chipping away at aspects of equal pay legislation post Brexit. The Beecroft report, which the noble and learned Lord referred to, which came forward as part of the Red Tape Challenge, repeatedly refers to the constraints imposed by EU directives. It recommended that compensation for the loss of earnings part of an award for discrimination dismissal should be capped and that small businesses should be able to opt out of a whole raft of employee rights, including unfair dismissal, the right to request flexible working, flexible parental leave and equal pay audits.

It is possible to anticipate objections that can and might be made to the amendment we are bringing forward—I can almost hear them in my ears before the Minister gets up to speak. The Bill is already transferring or preserving all the equality rights from EU law, so there is no need for this clause—I can hear that being said. The Bill does not transfer the underpinning of these rights currently provided by EU law. At the moment, the rights cannot be removed or diluted except by agreement at EU level. Maintaining the equivalent protection after the UK leaves the EU requires replacing this underpinning with protection in domestic law. That is what the proposed new clause would do.

Secondly, it might be said that this is a new right and that it is not the purpose of the Bill—how many times have I heard that?—to create new domestic rights. The proposed new clause would not create enhanced protection over and above the current position in the UK as a result of our membership of the EU; in fact, it is weaker, because it permits only a declaration of incompatibility rather than the striking-down of incompatible domestic primary legislation, as is currently the case.

Thirdly, it might be said that the clause would create confusion. I can think of two kinds of confusion that might be alleged, the first being that it created a new right which overlapped with the rights in the Equality Acts. However, it would create no such rights; it would merely provide that existing rights could not be removed or diminished. Neither a court nor a Minister introducing a Bill to Parliament should have any difficulty determining whether a new legislative provision removes an existing right in the Equality Acts. It might further be suggested that confusion is caused by introducing a Human Rights Act mechanism normally applicable to convention rights, but the Human Rights Act is not a convention mechanism; it is a domestic law mechanism carefully crafted to strike the right balance between respect for fundamental rights and the principle of parliamentary sovereignty. It is therefore entirely appropriate to adopt the same balancing approach in protecting equality rights.

Finally, it may be said that the proposed new clause will not work because some changes will need to be made to the Equality Acts, but it will not prevent technical changes being made to the Acts such as those referred to by the Government in their paper, Equalities legislation and EU exit. That paper confirms:

“No planned changes to the Equality Acts 2006 and 2010 or secondary legislation under those Acts, using the powers under the EU (Withdrawal) Bill will substantively affect the statutory protections provided for by that equality legislation”.


Such changes can therefore be made without removing or diminishing rights and will not be prevented by this clause. If in the future more substantive changes are required to the rights in the Equality Acts, it remains open to Parliament to make them in accordance with the principle of parliamentary sovereignty. I am entirely convinced of the value of the amendment and am very happy to support the noble and learned Lord, Lord Wallace.

[Baroness Lister of Burtersett]

My Lords, the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Low, have made a strong case. I am perplexed as to what possible argument the Government could make against writing in the principle of non-regression of equality rights, given the numerous assurances they have given to us on their commitment to such rights and given that, as already explained, the amendment was modified to take account of objections raised by the Minister in Committee. I can only think that the Government want to retain some wriggle room for the future.

That suspicion was strengthened when I read in today’s i that the International Trade Secretary has pledged to cut bureaucracy and red tape to promote free trade post Brexit. As we have heard, the Red Tape Challenge removed some equality rights and would have removed even more if our membership of the European Union did not prevent it doing so. As the noble Lord, Lord Low, has pointed out, the Beecroft report, which was part of the Red Tape Challenge, repeatedly referred to the supposed constraints imposed by EU directives. Is it surprising that we are rather suspicious that when those constraints are removed, a future Government might wish to resile from some of these equality rights?

Finally, I will go back to something I have referred to more than once because I think it is so important. At Second Reading, the right reverend Prelate the Bishop of Leeds asked us,

“at the end of this process, what sort of Britain … do we want to inhabit?”.—[Official Report, 30/1/18; col. 1386.]

That is a question that we really must keep coming back to. For me, the principle of equality is absolutely central to the kind of Britain that I want to inhabit when we have—unfortunately—left the European Union.

[Lord Cashman]

My Lords, I added my name to this amendment but too late for it to be printed in the Marshalled List. I congratulate the noble and learned Lord, Lord Wallace of Tankerness, on the way he moved this extremely important amendment. He referred to our earlier discussions on the Charter of Fundamental Rights, when the House was nearly full, and this connects directly to that debate.

There are deep concerns, not only within the House but outside, among respected and established non-governmental organisations and, indeed, the Equality and Human Rights Commission. I would expect the Government to clutch this amendment with open hands and embrace it to their chest, but I have worked with the Minister in the European Parliament and I know that I am not about to see that happen—although, as my noble friend Lady Lister said, the amendment puts into words the assurances offered by the Government and Ministers.

As I said earlier, there are real, deep concerns that rights will be attacked once we leave the protection of the charter and the treaty establishing the European Union and the Treaty on the Functioning of the European Union. Most of these rights arise out of Article 13 of the treaty of Amsterdam, which gave the European Union a legal basis upon which to act on the grounds of race, ethnicity, religion, belief, age, disability or sexual orientation; gender was covered elsewhere. They define the very societies and countries in which we choose to live.

I look forward to the Minister replying and surprising me by saying that the Government take this amendment on board and will embrace it. If I am not surprised, I will return to this issue. Others outside the House will return to this issue. I believe that it defines the kind of country we want to be post Brexit. Now more than ever, we need to offer reassurances not merely within the two Chambers of this Palace but within the Bill.