European Union (Withdrawal) Bill

Baroness Massey of Darwen Excerpts

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

Moved by

[Baroness Massey of Darwen]

37: Clause 5, page 3, line 21, at end insert “except in so far as the Charter is necessary to protect the rights of children and young people as provided for in the UN Convention on the Rights of the Child and the European Convention on Human Rights.”

[Baroness Massey of Darwen (Lab)]

My Lords, Amendment 37 focuses on the protection, welfare and rights of children once the UK is no longer a member of the EU. I am disturbed by the notion of excluding the European Charter of Fundamental Rights in our domestic systems. Why is removing this being considered? What can be put in its place that is better? Perhaps the Minister can give the House an explanation.

[Lord Brown of Eaton-under-Heywood (CB)]

Are the microphones on?

[Baroness Massey of Darwen]

I apologise if there are no microphones, although it is not my fault. There has been little effort to consider how Brexit might affect children. I do not know who has been consulted on this. Perhaps the Minister can tell me. Have children been consulted? Organisations now often consult children about matters which affect their lives. Have the UK commissioners for children been consulted? They are advocates for, and speak for, children. Has the voluntary sector, which does such a splendid job in supplying information and support to children and those of us who work for them, been consulted? If not, why not? Have academics who support children’s rights been consulted? If all these people have been consulted, what are the results of such consultations? Has an impact assessment on how Brexit will affect children been considered? If not, why not?

I believe that there are 80 EU instruments which entitle children to protection and welfare. EU directives have not all been incorporated into UK law, yet these are comprehensive. There are numerous case studies on children as victims of crime—the sexual abuse and exploitation of children, criminal justice, and legal aid for victims. All these emphasise what it will mean to not have the European charter in place. Some have argued that our domestic laws on children are sufficient to protect them in all instances. This is not the case and I shall discuss it in a moment.

Last Monday, my noble and learned friend Lord Goldsmith spoke about the need to retain the European Charter of Fundamental Rights and stated that the charter will not be downloaded into our domestic law. An opinion by a Queen’s Counsel concludes that this would weaken human rights protection in the UK. The independent Bingham Centre for the Rule of Law has stated that the charter does much more than codify rights and principles. The Joint Committee on Human Rights, commenting on the Government’s right-by-right analysis of the withdrawal Bill, concluded with six devastating paragraphs in support of retaining the charter. The final paragraph states that some of the charter rights,

“are based wholly or in part on provisions of the ECHR”.

Other international treaties also come into play that have not been incorporated into domestic law, such as the UN Convention on the Rights of the Child, to which the UK is a signatory. However, the UNCRC is not incorporated fully into UK law and there are no legal or financial sanctions for non-compliance with its provisions. The noble and learned Baroness, Lady Butler-Sloss, was hoping to comment on this but has had to leave.

The response also states that,

“a failure to preserve relevant parts of the Charter in domestic law after Brexit will lead to a significant weakening of the current system of human rights protection in the UK”.

The Children’s Rights Alliance points out that the European Charter of Fundamental Rights sets out in a single document the fundamental rights protected in EU law and of particular importance to the protection of children’s rights.

We all know that the UK under successive Governments has made great strides to protect and enhance the welfare of children. Examples include the Children Acts of 1989 and 2004 and the Children and Social Work Act 2017, which is not yet in force. However, our domestic laws do not cover the full range of children’s entitlement regulated by the EU. We have no constitutional commitment to children’s rights at central government level, the level at which most EU legislation will be amended or repealed after Brexit.

I give other examples. The Children Act 1989, of course, enhanced the welfare of children but did not regulate the full range of children’s rights to protection covered by EU law—for example, as regards consumer protection and health and safety. The Children Act 2004 strengthened the 1989 Act but does not cover cross-border recognition and enforcement of family orders currently regulated by EU Brussels I and II. In particular, the right of a competent child to be heard in relation to child abduction or family disputes is significant. The Equality Act, welcome though it is, is not particularly strong as an instrument for children’s rights and does not cover many issues that would be of concern post Brexit—for example, equality in the workplace.

The Children and Social Work Act improves decision-making and support for looked-after children and for safeguarding work at the local level. It also makes relationships and sex education appropriate to age mandatory in schools. However, it seems to contradict amendments introduced by the Immigration Act 2016, specifically on care support for unaccompanied children when they reach the age of 18 and do not have leave to remain, are not asylum seekers or do not have a first immigration application for leave to enter or remain.

Other Acts such as the Borders, Citizenship and Immigration Act 2009, the Modern Slavery Act 2015 and the broadcasting Act 2003 contain measures to protect children, but are not fully comprehensive and obligations may be vulnerable to repeal when implemented through statutory instruments. The EU (Withdrawal) Bill could create problems for thousands of families affected by divorce or separation or involved in cross-border EU-UK family or child protection cases.

In 2017, UNICEF published its report on the progress made on children’s rights in the UK. It stated that while we have made much progress, we are weak in assessing the impact of legislation and policy on children. There have been significant advances in child protection and welfare in Wales, Scotland and Northern Ireland. However, these devolved measures will be impaired by Brexit as much of EU law affecting children may well be repealed through the use of delegated powers at a centralised level. This, of course, is worth a debate in itself. The Minister may say that Government cannot ignore the Human Rights Act 1998 and the Equality Act 2010. But these Acts, welcome though they are, have limited relevance to children. The European Charter of Fundamental Rights and the UNCRC go wider and deeper. Does the Minister accept this? If so, could he say—I ask this again—what will replace the European Charter of Fundamental Rights? The only way to ensure that children’s rights and welfare are protected is for it to be incorporated as part of retained EU law.

The Government should ensure that all existing protections for children’s rights and welfare in the EU legislative framework are reserved in domestic law. We cannot leave children from the UK—but also, in certain cases, from the EU—vulnerable to unclear or non-existent laws. I cannot understand the decision to drop the European Charter of Fundamental Rights when nothing else is in its place, and I do not know what will be. Why bother? Why reinvent? Any charter or convention, if attacked, must surely weaken the commitment to human rights, and we should resist such attacks with all our might.

[The Earl of Dundee (Con)]

My Lords, in connection with EU withdrawal, and as already intimated, there are perhaps two key aspects concerning our protection of children. First, that the current level of cross-border co-operation should not diminish. Secondly—which this group of amendments highlights—that UK domestic law and its deployment should continue to be guided by the United Nations Convention on the Rights of the Child.

With regard to the first, can my noble friend the Minister reassure us that to safeguard children the right steps are being taken so that the UK will remain part of relevant cross-border interventions, including Europol and the European arrest warrant agreements?

The second focus is on United Kingdom law protecting children. Here, two inconsistencies already obtain. For, while subject to EU legislation, our own UK legal provision still falls short of that covered by EU law on children. In relation to UNCRC there is an even wider gap. That is since, although guided by it, none of the United Nations Convention on the Rights of the Child has been incorporated into UK domestic law at all—hence within Amendment 70 the exhortation that it should now come to be.

However, in spite and irrespective of such apparent anomalies and omissions, after EU withdrawal clearly our principal aim must be to avoid any slippage of existing UNCRC standards. What plans does my noble friend now have to ensure that we do avoid this?

Yet at the same time, does he concur that we ought to go much further; thus not just guarding against the erosion of standards; but in properly maintaining them also seeking to build upon and improve them?

For, rather obviously, sustained cross-border co-operation as well as improved national legislation protecting children are both in the interest of all states. To mutual benefit, therefore, this consideration in turn reflects the positive opportunity for attaining much better results for protecting children’s rights.

All the more so is that the case with us since, although leaving the European Union, we will remain within Europe’s consensus on human rights and the rule of law represented by its far larger affiliation of the 47 states of the Council of Europe, in which parliament, along with those here tonight, including the noble Baroness, Lady Massey, the noble Lords, Lord Russell and Lord Foulkes, and my noble friend Lord Balfe, I have the honour to serve.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

My Lords, I too strongly support the rights of children. Indeed, I support the rights of the elderly, in whom, like the noble Lord, Lord Foulkes, I must, alas, declare an interest. However, with the best will in the world, I cannot support any of these amendments. The first point I make is that we debated reasonably fully last week the desirability or otherwise of incorporating this charter into UK domestic law in this Bill. The previous group is said to have been “already debated” and I find it difficult to see the logic of now debating a host of questions which raise the same idea, only more narrowly focused on one or two specific, individual charter provisions. This debate has ranged far and wide. We have even been back to cross-border co-operation, which was the subject of an earlier group, and I am certainly not going back down that trail.

I shall turn to the specific rights addressed here. The suggestion that the rights of children could be a primary consideration in any decision affecting them is hardly radical. As the noble and learned Lord, Lord Mackay, noted earlier, the Children Act 1989 puts it rather higher than a primary consideration: it is the “paramount consideration”. Of course there are areas beyond the scope of the Children Act as such which are in play with regard to children, but for the life of me I cannot think of a single case in recent years affecting children—or, indeed, the elderly—which would have failed under the convention and the common law but would have succeeded only by reference to the charter; nor can I envisage such a case in the future. Somebody may be able to devise a scenario which would meet that but I have not been able to do so.

In any event, the Article 24 rights are regarded as retained general principles of EU law and therefore will continue to apply. The right to be heard on the part of children is not a contentious one. I took the opportunity of the regrettably short break we were given this evening to look at a particular decision—indeed, I think it was one of the last Supreme Court cases I was involved in, and my noble and learned friend Lord Hope will remember it because he presided over it. It was a group of extradition cases under the title of HH v Deputy Prosecutor of the Italian Republic. In the course of it the question of the children’s views was raised; it was an extradition case but the same principle applies across the wide field of children’s interests. The noble and learned Baroness, Lady Hale of Richmond, who gave the lead judgment in the case, concluded:

“I share the view of the Official Solicitor that separate legal representation of the children will rarely be necessary, but that is because it is in a comparatively rare class of case where the proposed extradition is likely to be seriously damaging to their best interests. The important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly”.


I do not know of cases where children’s interests are lost because they are not permitted to express their views.

[Baroness Massey of Darwen]

I have a number of case studies on these issues, which I will show the noble and learned Lord. Children’s rights are not always consistent, particularly in youth justice cases. I know that children in custody in the youth justice system are very often ignored, mistreated and not heard.

[Lord Brown of Eaton-under-Heywood]

I would be extremely obliged to the noble Baroness if she would put these cases clearly and crisply on a piece of paper and share them not only with me but with the Official Solicitor, who I think would be extremely interested in the proposition that children’s rights are being ignored in the youth justice system. But if they are ignored now, when the charter is available, what is to be lost?

--- Later in debate ---

[Lord Callanan]

I will come on to the noble Lord’s question shortly and answer him directly. None of this extensive framework is altered or in any way diminished by our exit from the EU and the non-retention of the charter. Amendments 68, 69 and 70, tabled by the noble Baronesses, Lady Meacher and Lady Lister, and the noble Earl, Lord Listowel, would incorporate the UN Convention on the Rights of the Child into domestic legislation and require all public authorities and Ministers of the Crown to have regard to it. Further, Amendments 97 and 158, tabled by the noble Baroness, Lady Meacher, seek to ensure that regulations made to remedy deficiencies in retained EU law are not contrary to the UNCRC. Again, I thank noble Lords for these considered amendments. Although tabled with great intention and faith, in reality they would not enhance the existing safeguards in place to preserve the rights of children in this country—measures that I have already outlined and which will remain in place after the UK’s withdrawal from the EU. I thank the noble Baroness, Lady Deech, for her comments and points on this matter.

It is also important to highlight that in addition to these measures, which are a combination of both legislation and commitments, the UK Government already have a commitment to Parliament to give due consideration to the UNCRC when making policy and legislation. In response to the noble Baroness, Lady Massey, I assure noble Lords that the Government are working closely with the Children’s Rights Alliance for England to ensure that children and young people’s views are heard and taken fully into account when developing policy and delivery in this area. We are hugely grateful to it for the great work it does to help preserve children’s rights and deliver a framework of actions on the UNCRC. These actions are designed to embed children’s rights across Whitehall and beyond, as we set out in a Written Ministerial Statement in October 2016. Those actions include developing and promoting training for civil servants to help them understand children’s rights and the UNCRC, and looking at how we can promote and embed good practice.

As I have set out, the UK already meets its commitments under the UNCRC through a mixture of legislative and policy initiatives, which effectively safeguard the rights of children in this country, negating the need directly to incorporate the UNCRC itself. That approach is in line with normal practice for implementing international treaties. By going over and above measures already in place, and which will of course remain in place after we leave the EU, the amendments would create new burdens on public bodies and individuals, when the UK’s existing laws and commitments already adequately safeguard the rights of children in this country.

Amendment 70, from the noble Baroness, Lady Lister, addresses continued co-operation on various security and law enforcement tools. Those discussions will be a matter for negotiations with the EU. The continued security of Europe is unconditionally guaranteed and is of paramount interest to us. The Government have been clear that the UK remains unconditionally committed to European security, and in the exit negotiations we will work to ensure that the UK and the EU continue to co-operate closely to safeguard our shared values and combat common threats. We recognise in that regard the value provided by Europol, the European arrest warrant, Eurojust and ECRIS. I hope that that provides appropriate assurances to my noble friend Lord Dundee and reassures other noble Lords of our wholehearted commitment to children’s rights and the UNCRC, showing that our ability to support and safeguard children’s rights will not be negatively affected by UK withdrawal from the EU.

I turn to Amendment 39, tabled by the noble Baroness, Lady Greengross, on the rights of the elderly. I entirely sympathise with the concerns raised today and I reassure the Committee that the Government are committed to the welfare of the elderly. I particularly thank the noble Lord, Lord Foulkes, for drawing my attention to his no doubt excellent report in the Council of Europe. I must profess that in my extensive reading material I omitted to go through that worthy document but, now that he has drawn my attention to it, I shall make it my priority to get hold of a copy and will reply to him in writing on it.

There are enforceable domestic safeguards for the rights of the elderly under the Human Rights Act and the Equality Act. Older people will continue to benefit from the existing strong protections against age discrimination, harassment and victimisation in the Equality Act 2010—for example, when accessing services when we leave the EU. Of course, the Government also make provision for the rights of the elderly in domestic legislation in a range of ways. To take just the most obvious example, domestic law provides for state pensions and the safety net of state pension credit, as well as disability benefits and other measures such as the provision of social care for those with eligible needs—subject of course to a financial assessment—free prescriptions where charges would otherwise apply, and travel concessions. Again, none of this is in any way diminished by our exit from the EU and the non-retention of the charter.

Article 25 of the charter is also a principle, which is different from a right. It cannot be relied upon directly by individuals in the way that rights can. Principles are a valued and important tool, and, in so far as the principles and rights underpinning the charter exist elsewhere in directly applicable EU law, or EU law which has been implemented in domestic law, that law will be preserved and converted by the Bill. Retaining Article 25 as a standalone right in this way is simply not necessary. If Article 25 was incorporated into domestic law, it would be unclear how it was supposed to apply and it would undermine the Bill’s core objective: to give certainty and continuity after we leave the EU.

I turn to the question asked by the noble Lord, Lord Wigley, on protecting children’s rights. The UNCRC does not impose a requirement on state parties to incorporate the UNCRC itself. It is focused on the implementation of rights without prescribing how state parties should achieve that. I reassure noble Lords that the UK meets its obligation under the UNCRC through a mix of legislative and policy initiatives, as opposed to the incorporation of the UNCRC itself.

With regard to Wales, the Rights of Children and Young Persons (Wales) Measure 2011 requires Ministers to have due regard to the convention when exercising their functions. The Children’s Rights Scheme 2014 sets out the arrangement Ministers have in place to ensure compliance. None of the rights exercised by Welsh Ministers will be affected by any of the provisions in the Bill.

My favourite hereditary oik, the noble Lord, Lord Russell of Liverpool, mentioned two articles. I certainly remember writing the article for “ConservativeHome” but have no recollection of writing an article for the Sun on the same day. I would be grateful if he would send me a copy of this for my delectation and interest, and I will respond to him when I have had a look at it.

I hope that my reassurances to noble Lords will enable them to withdraw or not move their amendments.

[Baroness Massey of Darwen]

My Lords, I thank the Minister for his reply. We have had an excellent debate on children’s rights and protection, with many articulate and forceful contributions. The noble Baroness, Lady Tyler, stressed that children are potentially the most affected by Brexit because they are young and will be subject to the forces that Brexit might bring. I am disappointed by the Minister’s response. Many of us have said tonight that we recognise that we have made great strides in defending children’s rights and proposing things which improve those rights and the protection and welfare of children. But I would like the Minister to recognise what was also said: namely, that our domestic laws do not protect children in all circumstances. Many noble Lords have given examples of this.

As my noble friend Lady Sherlock said, our laws do not incorporate all the treaties and we should be working towards more incorporation. The noble Baroness, Lady Meacher, thought this might be an “oversight”—I think that was the word she used. Whatever it is, we need to sort it out. We need to recognise that children’s rights and protection are not always incorporated into what we do. An example is youth justice, where 17 year-olds can be treated as adults rather than children. Children say that this is not right or sensible, and I agree.

The Government have made it clear that they are very keen on social mobility. It is important, but it will not happen unless children are encouraged to participate in their own futures. I am talking about empowerment as well as protection. Last November, I held a seminar in Portcullis House. One or two noble Lords were there as observers. We talked about child-friendly justice and child mental health. Almost half the participants were children and young people; others included academics, European politicians and NGOs. It was acknowledged by everyone that the contribution of young people was absolutely crucial to defining the needs of children and young people and responding to them. I recognise that the Minister says that they have talked to CRAE—for which I have the highest regard—on the rights of the child, but have the Government actually listened to what children have to say on this? I would like some evidence of that.

As I said, we have made progress on involving and protecting children, but we should be big enough to take criticism when it comes—and we are criticised. We are not rated highly at international level on how we deal with children. I gave the example of youth justice. We should not be complacent.

This is an important set of amendments, spoken to most forcefully by colleagues. I hope that the Minister will call a meeting of those present today and others to discuss how we can move forward on issues relating to Brexit and children. My questions and those of others have not been sufficiently answered. I still have reservations and I would like to meet the Minister to talk about them. I beg leave to withdraw the amendment.

Amendment 37 withdrawn.