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.

House of Lords: Lord Speaker’s Committee Report

Baroness Whitaker Excerpts

Tuesday 19th December 2017 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, the noble Lord, Lord Forsyth, is always a hard act to follow. I come to this debate somewhat from the outside but I have had a little to do—to a greater or lesser extent—with the structure of bodies in the public sector. I have set some up and dismantled some. Your Lordships’ House has always seemed to be effective, very often in spite of, rather than because of, its structure.

In contemplating an ideal second Chamber I would rather not have started from here, but we are not in the realms of Utopia and are strictly confined by the art of the possible. Within the art of the possible it is so desirable to limit our numbers that a very pragmatic solution must be worked out. We have agreed this. Even the reform of numbers is not at all an easy task and I congratulate the noble Lord, Lord Burns, on his elegant proposals. Not only do they fit the bill, they achieve the objective without transgressing other boundaries by leaving much to the discretion of party and other groups.

As we are in the realm of the practical, reasonable and feasible, on all these tests it seems to me that the noble Lord’s proposals pass muster. They are practical: they inexorably reduce numbers over time and maintain that reduction. They are reasonable: they leave to the parties who must go, but also reflect electoral decisions without destroying balance. This is particularly ingenious. They are feasible: all we need do is agree; no legislation is needed. They would serve our country better for the time being, which is what we must do. We have the privilege, among other privileges, of serving the public. It is to serve our country better that matters. I commend the proposals.