European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

2nd reading (Hansard): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, there is much in the Bill that merits deep and extensive scrutiny, but at this stage I simply want to signal alarm at the treatment of human rights. “Human rights” is a legal term for what we might otherwise think of as respect for individuals and recognition of their human dignity. We have acknowledged its importance in devising the powers of the state since our earliest times, and we have pursued it more or less consistently in our long participation in international and European law-making.

So it is disturbing to see that, despite valiant efforts in the other place on all sides to retain the Charter of Fundamental Rights, the Government have insisted that it be discarded from our law. It is true that when the Labour Government, in the person of my noble and learned friend Lord Goldsmith, negotiated this important instrument, it did not at that time confer any new rights. What it did was codify existing fights and provide for actual remedies against breaches. Our Human Rights Act provides only for a declaration of incompatibility if our law breaches the European Convention on Human Rights. Under the charter, damages may be awarded. How much more useful is this to the wronged citizen than a declaration, even if eventually, that results in a change in the law? What are the Government going to do to put this right?

At least as important is the development of the usefulness of the charter since we helped to bring it into being. There are too many areas where the charter now goes beyond the convention, and thus our own Human Rights Act, to enumerate in the time available. The free-standing right to equality, a right to vocational education and some of the protections for children are among the most telling. Case law has brought new safeguards in respect of data protection, for instance, including the basis for the right to be forgotten. These too would be lost under the Bill. There are also general principles under the charter which we would lose as a basis for challenging injustice under retained EU law, such as proportionality—unless, the Government now say, the challenge was brought within three months of exit, which is surely a paltry concession.

We should also be very concerned about the vulnerability of our rights to the regulation-making power in the Bill. Is it not manifestly unjust and unparliamentary to subject fundamental rights to secondary legislation? How can we accept the prospect of a Government easily dismantling the enhanced protection given to the environment, consumers, health and safety and the rights of workers not to be exploited? We need a strengthened scrutiny procedure beyond the Government’s new add-on of an EU SI Committee, and stronger than the concession of declarations concerning equality.

It is notable that the Government’s impact statement omits any consideration of the impact of the diminution of rights and redress for their breach that follows from discarding the charter and from the use of secondary legislation. Will the Minister commission a fresh study to remedy this deficiency? Of course, if we had a written constitution many of these fears could be allayed. The Supreme Court would then have a basis to put a stop to any future legislation curtailing the freedoms we have achieved, for instance in equality and working conditions. This is quite apart from the other advantage that it would be taught in schools so that all citizens and, for that matter, would-be citizens could know exactly what our values concerning justice, rights and responsibilities meant for them.

The Government have recognised the anxiety expressed on all sides about their treatment of human rights in this Bill in their Right by Right Analysis. I welcome the undertaking to,

“look again at some of the technical detail about how the Bill deals with the general principles of EU law … and how some challenges based on the general principles might continue after exit”.

This confirms, however, that all the charter rights will not be carried over after Brexit. That is what we need to fight for.

Finally, there are many amendments we ought to discuss in Committee. I hope that among them will be a provision that the Charter of Fundamental Rights will still apply to EU-derived law and that the right to damages which result from the Government breaching EU law will be protected. If the Government set their face against entrenched law, this could be done through adding provisions to the Human Rights Act 1998.

European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Baroness Ludford]

There are several more speakers, I am afraid, including me.

[Baroness Whitaker (Lab)]

My Lords, in briefly supporting those amendments that seek to retain the charter, I owe your Lordships an apology. I ought to have declared that I am a member of the advisory board of the British Institute of Human Rights at Second Reading, but I forgot.

I am not a lawyer, but I respectfully submit that law is not primarily for lawyers, any more than water is for water engineers—it is for people to implement the central values of our democracy on their behalf, and the deprivation of rights and access to justice causes harm, unfair poverty, unfair unhappiness and, in some cases, unjustly shorter lives. That is the sort of thing we should be thinking of when we look at these amendments.

I shall just give three quick examples, much humbler than those of Mr David Davis. The general principles and the charter ensured that Mr John Walker could challenge and end pension inequality for same-sex couples. The charter and the general principles supported the recent case in the Supreme Court, which found employment tribunal fees implemented by the Government were unlawful. And the charter enabled the recognition of the importance of health as a fundamental right—not in our law—when tobacco companies challenged regulations to introduce plain packaging of cigarettes.

It seems extremely clear that dropping the charter will do away with protective rights and drop safeguards that have ensured justice in individual cases of injustice. It is individuals who we ought to be thinking about, and rights that would not otherwise exist that we ought to safeguard in the charter.

[Baroness Ludford]

My Lords, the Benches opposite have been well filled to harry the noble and learned Lord, Lord Goldsmith, about fundamental rights. Sadly, they were not here for the previous debate to speak up for achieving a fundamental right to safety and security.

I fear that parts of this debate have displayed a fundamental misunderstanding about the EU Charter of Fundamental Rights. There has been evidence of some quite muddled thinking. The charter is not a tool that extends the remit of EU law or promotes further integration; it protects citizens and businesses from abuse of the powers that EU laws confer on EU institutions and—I have to say to the noble Lord, Lord Faulks—on national Governments when they are implementing EU laws. So it is not just about all the EU institutions that we might leave; it is about achieving legal certainty and continuity. Deleting the charter means discontinuity by making substantive changes to the EU law that is retained in domestic law.

European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, my name is on some of these amendments. I will be extremely brief. We are now at the core of the Bill, and at the core of how the Government respond to it. I cannot recall reading two such critical reports from committees of this House as the two we have had on these clauses— for example the suggestion that Clause 9 is wholly unacceptable and the suggestion that Clause 7 leaves very considerable uncertainty, both of which are from the Delegated Powers Committee. I therefore ask the Minister to offer us the prospect that the Government will come back on Report with their own recognition of the strength of feeling in this House. Without question, the Government will lose heavily on this the first time it is tested, and quite possibly again after it has gone back to the other place if the Commons sustains it.

We are in a position at which we need from the Government some reassurance on these constitutional issues, as well as these issues of trust, as they put through a Bill with a huge range of flexibility. We need reassurance on the Government’s future intentions, as their future intentions on much of this are still not entirely clear. I simply ask the Minister to be generous and to stretch his freedom of action as far as he can in the way he responds.

[Baroness Whitaker (Lab)]

My Lords, the noble Lord, Lord Lang, pointed out that we are a bit thin on the ground for such an important set of amendments, but the Minister should know that there is behind us an army. I have had more representations on Clause 7 than on any other part of the Bill—representations from national organisations, human rights organisations, advocacy organisations, legal organisations, professional organisations, and from individuals. There is very widespread civic concern over these clauses, and the Government should heed it and accept these amendments, which have such widespread support also in your Lordships’ House.

[Lord Mackay of Clashfern (Con)]

My Lords, the existence of these powers in the Bill has created an apprehension in a lot of people that the Government are proposing to use the powers in some way to undermine something that is valuable to them. It is therefore important—apart altogether from the argument that examines the detail—that we examine this carefully. The noble Lord, Lord Wilson of Dinton—with his background of great success as a civil servant, no doubt contributed to by his early experience as a lawyer—has moved the amendment in a way that has made it extremely clear. It is quite clear to me that necessity is a better test on which to leave these powers than the discretionary test of “appropriate”. It is not absolutely right that discretion is not subject to judicial review, but at least an objective test is certainly more likely to lead to successful judicial review if it is transgressed.

We have to remember the huge task involved in trying to put these two systems together; the European system, which has been here for 45 years, has been working alongside our system and kept separate from it over all that time. That is by no means an easy task. Indeed, what we already discussed with regard to Clauses 2 and 3 illustrate that. It is difficult and time consuming, and we must ensure that the solutions we suggest to the Government are practical and will enable this to be done in a reasonable time so that the statute book can be right on Brexit day.

I anticipate that the test of necessity will be an easier one to apply for those entrusted with the power than the test of what is appropriate. The latter involves an element of judgment, which is not always easy to exercise; whereas if it is obvious that these two bits do not fit together, it is necessary to do something about it. As the noble Lord, Lord Wilson, said, it is not necessary to circumscribe the solution. The argument that necessity suggests not only that the amendment is required but also what particular amendment is required stretches the matter a little far. So long as it is necessary to do it, that is a sufficient test for our purpose, and then it is for the Minister to do his best to sew these two pieces together.

I am somewhat alarmed at the survey by the noble Lord, Lord Wilson, of the people entitled to use this power, and the Minister may well have something to say about that. However, there is a lot of work to do, and we do not want to overwork the Ministers with necessary adjustments when they ought to be doing something else. There is certainly plenty to do between now and Brexit.

In addition, it has been said that this is surrendering the power of Parliament to the Executive. To an extent that is true, but Parliament retains a veto in respect of every single regulation, either by a negative or an affirmative resolution. It is true that we do not want to have thousands of these if we can possibly avoid it, apart from anything else. But there is an element of control there. How practical that would be is, I think, doubtful. There is an urgent need now to circumscribe these powers so that they work properly and effectively but not excessively. As I said, a lot of people have worries about human rights, equality rights and a whole lot of other rights. Sometimes people have spoken in conversation or in observations to the press or whatever, which does not represent the Government’s policy. This helps to inflame the idea that the Government are using these powers to take away all that has been so dearly won. I do not think that is true, but we should try to remove the possibility that this idea can be represented.

--- Later in debate ---

In fact, the Government seem to have portrayed it as some kind of limitation in itself, but I do not read subsection (3) like that. Having purported to restrict Clause 7(1) somewhat, in response to the criticisms in the other place, the Government then attempted to put back the greater latitude in subsection (3)—that Ministers can regulate if there is a “similar kind” of deficiency. What on earth is “similar”? Of course, that begs a big question, but it seems to me that this was not properly examined in the other place. It just got slipped in as part of a response to concerns but it actually adds to the concerns about ministerial powers. It certainly does not remove them but inserts a new cause of worry. So I fully support Amendment 80, which would delete subsection (3), because subsection (3) undoes the good work that was done in a modest tightening-up of Clause 7(1).

[Baroness Whitaker]

My Lords, I support my noble friend’s Amendment 82. Yet again it is the issue of using secondary legislation under Clause 7 to make changes, in this case to the Equality Act 2010 or to subordinate legislation made under that Act, or to reduce rights or remedies under EU retained law,

“in comparison with the position immediately before exit day”.

Your Lordships’ Committee made its views on the abuse of Clause 7 abundantly clear during the earlier debate. Surely the same reasoning applies.

[Lord Beith]

My Lords, I follow my noble friend Lady Ludford in querying what is intended by Clause 7(3) and hope that the Minister will be able to draw on his limited stock of examples to provide me with one—indeed, with something that fulfils this definition:

“There is also a deficiency in retained EU law where the Minister considers that there is … anything in retained EU law which is of a similar kind to any deficiency which falls within subsection (2)”.


In that case, why does it not fall within subsection (2)? Can the Minister give me an example of something which subsection (3)(a) would provide for but which subsection (2) has not provided for?

--- Later in debate ---

[Baroness Altmann (Con)]

My Lords, I have added my name to these amendments. I believe that public bodies should be established by primary legislation. Parliament must have the opportunity to properly scrutinise and access the expenditure associated with trying to replicate bodies to which we already belong. The Bill, and in particular Clause 7, contains elements that are frightening to those of us who believe in parliamentary democracy. Handing such powers to the Executive is a gross dereliction of duty. I encourage my noble friend to urgently ask his department to reconsider the Government’s current intention to leave so many excellent EU agencies and try to recreate our own versions.

[Baroness Whitaker]

My Lords, it must be inherently undemocratic for bodies that have significant obligations, for instance under the Equality Act or the Human Rights Act, not to be set up with the full parliamentary scrutiny of primary legislation, so I support these amendments.

European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Baroness Whitaker (Lab)]

With some timidity, may I offer a cruder and less specialised perspective, somewhat along the lines of the noble Lord, Lord Tyler? Taxation and mandatory fees and charges are surely, in principle, cardinal to the social contract and the liberty of the subject—that is, the subject cedes liberty as part of a democratic deal. In the past when monarchs have attempted to impose taxes, Parliament has continually rebelled. It is Parliament’s job to decide taxation, fees and charges, through primary legislation. I deeply support these amendments.

[Viscount Hailsham]

My Lords, I support the amendments in this group, most notably Amendment 86, the lead amendment. The first thing to perhaps acknowledge is how wide the power is in Clause 7. I acknowledge that the Minister will make this point. The power proposed under Amendment 86 would be governed by the overarching provisions of Clause 7, but it is also fair to point out that Clause 7 has a very wide scope. If one looks at Clause 7(3), one sees that the Minister has a power to enlarge the interpretation of the legislation in question.

The second point is that if one looks at paragraph 2 of Schedule 7, one finds that a fee—an important word in this context—imposed by a public authority can be created only by the affirmative procedure. What the Committee needs to address, however, is the distinction between a fee and a charge. The noble Lord, Lord Turnbull, suggested a difference, which I think was that a charge involves a surplus, so that perhaps it should be treated as taxation. But I am not sure that definition is recognised by law.

European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

Committee: 7th sitting (Hansard - continued): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I have added my name to this amendment. The noble Lord, Lord Bassam, spoke powerfully about a particular girl from Syria but she is typical of children across Europe. I went to Calais in May with Fiona Mactaggart, then an MP, and we wrote a report about the situation in Calais and Dunkirk, but it is also true in Italy and in Greece. Of those children who have come across Europe without their families, there is a group who have rights under EU law. Those are the children who can apply under what is known as Dublin III. This amendment asks that the relatively small number of children who have actually succeeded in coming to this country should not be cut off when Brexit occurs. I accept Brexit, but what I ask, along with fellow Members who have put their names to this amendment, is that the Minister who answers on behalf of the Government recognises that Brexit should not prevent the existing rights of children. It is not just a moral issue; it is a legal issue: they currently have rights and it would in my view be shocking if those rights were got rid of because we leave the EU.

[Baroness Whitaker (Lab)]

My Lords, at this very late hour I say that I agree with everything that other noble Lords have said and add that our record has not been what it should be in implementing our obligations regarding this most deserving of humanitarian problems. We should improve it, not curtail it, so I support these very moderate amendments.

[Baroness Stroud (Con)]

My Lords, I rise to speak to this amendment, moved by the noble Lord, Lord Dubs. Our exit from the European Union presents us with a unique opportunity to define, in our own terms, the country we want to be. This nation is and always has been generous and open-minded towards refugees and has offered a home in times of trouble. From the Huguenots to the Belgians and Jewish refugees, we have a strong tradition of welcoming those who seek shelter. As a child, I can remember my own mother working as a nurse to welcome the Ugandan Asian refugees, and then later the Vietnamese boat people. This seemed only natural to me, given that my own father had been evacuated as a child to Canada during the war. This tradition is something which I hope, regardless of one’s views on Brexit or the European Union, we can all agree on.

In the period January 2016 to September 2017, the UK welcomed a total of 9,897 refugees, approximately half of whom were female and half were children. We can and we should do more, and we should seek to keep open and available every channel by which people are able to safely seek asylum. Dublin III is one of the ways in which respect for family life and unaccompanied minors’ best interests are kept at the heart of the asylum process. For some 300,000 unaccompanied child refugees, the risks of trafficking and forced prostitution or forced labour are extremely high. We know that in the Mediterranean, more than 75% of the 1,600 14 to 16 year-olds arriving in Italy reported being held against their will or forced to work. This staggering statistic is absolutely why we should be working to ensure that there are accessible, legal routes such as Dublin III, which allow children to apply for asylum safely from the country they are in, and not be forced to take dangerous journeys to join their families.

For children and adults fleeing conflict, the best place for them to be is with family members. This offers the best possible chance for them to thrive and rebuild their lives post trauma. The co-operation that Dublin III offers aids this but, as we all know, the Dublin conventions are only a small part of the story, and while the co-operation should remain, it is one strand of a much wider issue.

From the Calais operation, just 29 of the 769 children who were transferred to the UK came from the Dublin regulation route, and in 2016 just 355 people were transferred under this route. To date, the UK has taken in 10,538 refugees from Syria—just over half of the number we committed to resettle by 2020. We have so far welcomed around 220 children under Section 67 of the Immigration Act, which my noble friend Lord Dubs fought so hard to obtain: less than 1/10th of the original number committed to. Going forward, is this the sort of country we want to be?

Brexit is an opportunity to re-evaluate our priorities as a country and refocus on the country we want to be. Being an open nation with a generous welcome for those in need of our shelter should be a key part of that. I understand the limitations of Dublin III. But I call on my noble friend the Minister to clarify and confirm in this Committee that, post March 2019, the Government’s new and independent approach to refugees would guarantee that those who benefited under the old system would still benefit under the new, and that no restriction would be put in place preventing those in need from being reunited with their families.