European Union (Withdrawal) Bill

Lord Adonis Excerpts

Wednesday 7th March 2018 Lords Chamber

[Lord Callanan]

If a new amendment is put forward, of course we will look at it and consider its legal implications. I can give that assurance.

On Amendment 112, our starting point is that the new statement of principles and the environmental body should cover England and environmental matters that are not devolved. To respond to the point made by the noble Lord, Lord Wigley, if the devolved Administrations would also like to take action on these issues, we are open to co-designing the proposals to ensure they work more widely across the UK. We would need to take account of the different government and legal systems in the home nations, as well as the different circumstances in the different parts of the UK. This amendment risks compromising consideration of these important issues as well as the wider devolution settlement by requiring the UK Government and devolved Administrations to consult jointly on UK-wide proposals for governance and principles.

On Amendment 113, the secondary legislation made using the powers under Clause 7 will be subject to parliamentary oversight, using well-established procedures. This amendment would require us to make all the regulations within one month of Royal Assent. This would not allow time for stakeholder consultation and would also not allow sufficient time to make all the SIs—noting that affirmative SIs take longer than one month to be laid and made.

Many areas of environmental policy are devolved. This amendment would require the Secretary of State to make regulations for all the UK, which would be contrary to the devolution settlement. It would also require the creation and maintenance of a register of functions indicating who is responsible to perform them before leaving the EU and who will be responsible after we leave the EU. This is a bit of bureaucratic procedure that has no added value. The SIs under the Bill will set which UK body will perform functions, such as the various regulatory functions.

On Amendment 108, the UK Government laid legislation transposing the national emission ceilings directive in Parliament on 1 February 2018, demonstrating our clear commitment to improving air quality. This legislation implements ambitious, binding emission reduction commitments for 2020 and 2030 into domestic law. Air quality has improved significantly over recent decades, with the UK reducing emissions of all the major five air pollutants. For example, since 1970 we have reduced emissions of nitrogen oxides by 69%, emissions of PM10 by 73%, and emissions of PM2.5 by 76%. Emissions will continue to reduce thanks to the action we have already taken, and we will publish a new clean air strategy in 2018 setting out how we will work towards our 2020 and 2030 commitments.

The Bill will ensure that the body of existing EU environmental law continues to have effect in UK law. It will be for Parliament—and, in some cases, for the devolved legislatures—to make any future changes in legislation after we have left the EU. The power under Clause 7 will be used to amend legislation to ensure continued operation of legislation, enabling the Government to continue to meet their environmental objectives.

Amendment 186, tabled by the noble Lord, Lord Adonis, and to which the noble Baroness, Lady Brown, spoke, would compel the Government to set out a strategy on the EU emissions trading system. This amendment is unnecessary given that our Clean Growth Strategy, published last year, clearly sets out our guiding principles on reducing emissions. We are considering the UK’s future participation in the EU ETS after our exit. We remain firmly committed to carbon pricing as an emissions reduction tool, while ensuring that energy-intensive and trade-intensive businesses are appropriately protected from any detrimental impacts on competitiveness.

[Lord Adonis]

The Minister said that the Government are “considering”; does that mean that they might propose to continue our membership?

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[Lord Wallace of Tankerness (LD)]

My Lords, Amendment 70A stands in my name and that of the noble Lord, Lord Low of Dalston, and the noble Baroness, Lady Lister of Burtersett. It seeks to insert a new clause on equality and discrimination to ensure that the withdrawal of the United Kingdom from the European Union does not diminish protection of equality in our domestic law.

In their White Paper Legislating for the United Kingdom’s Withdrawal from the European Union, it is fair to say that the Government set out very strong commitments to continuing many of the equality laws that exist. Indeed, on Monday evening the noble Lord, Lord Duncan of Springbank, in replying to a debate on family and employment law, gave a very forthright and unequivocal commitment to retaining employment law and things such as the working time directive after we leave the European Union. On page 16 of that White Paper we were promised that,

“all the protections covered in the Equality Act 2006, the Equality Act 2010 and equivalent legislation in Northern Ireland will continue to apply once the UK has left the EU”.

As I said, the purpose of the amendment is to ensure that that is future-proofed.

It is fair to say that the relationship between the development of equality law in the European Union and domestically in the United Kingdom is almost what you could describe as symbiotic. There is no doubt that in many cases—I think this has already been aired in earlier debates—the minimum standards set down by the European Union have been exceeded by what has been brought in in the United Kingdom. On other occasions, the changes that have come about—for example, in 2003 with the expansion of protected characteristics to cover sexual orientation and religion or belief and a subsequent extension to cover age—have been as a result of European law. However, the extension to cover goods and services saw our domestic law overtake that of the European Union. Therefore, there has been progress, but an important part of that has been our membership of the European Union.

It is important to recognise that the Women and Equalities Select Committee of the House of Commons, in a report in February 2017, concluded:

“Ensuring that equality protections are maintained is not simply a matter of transposing existing EU law. In order to protect rights, the Government needs to take active steps to embed equality into domestic law and policy. The steps we recommend would entrench equality into the UK legal and policy framework and would ensure that the UK retains a strong, undiminished record of equality after it leaves the European Union”.


The purpose of the amendment is to give substance to that conclusion of the Women and Equalities Select Committee in the other place, and I am indebted to the Equality and Human Rights Commission for instigating this amendment.

As I have indicated, equality rights are currently underpinned by EU law. The right to equal pay for work of equal value, the protection of pregnant workers and many others cannot be removed from our domestic law as long as we are part of the European Union. However there are concerns that at some stage in the future a Government—not necessarily the present Government—may seek to erode these rights. The amendment seeks to provide an overarching domestic guarantee of non-discrimination by the state—in other words, a homegrown replacement for the safety net for equality rights which are currently provided under EU law.

Of course, a sovereign United Kingdom Parliament could at any stage repeal this provision but if it is in statute it would be much more difficult to take it away after it has been clearly set out. The Government’s difficulties in trying to remove the Human Rights Act show that when legislation is in statute it achieves a certain safeguard which Governments have to think twice—if not three or four times—about before trying to dismantle.

The right of equality builds on our common law principle of equal treatment without discrimination and is an important signifier of what kind of country we want to be after we leave the European Union. It is similar to what was said in the previous debate on environmental protection. Many of the environmental protection laws have come into the United Kingdom through the European Union. We have often built on them but, as we look forward, we want to be a green country which values fairness and equality.

The amendment’s application would not be confined to Brexit-related legislation but will be an enduring new right in United Kingdom law. It will strengthen protection, for example, for children, who currently have limited protection from unjustifiable discrimination under our domestic law. Subsection (2) of the proposed new clause in the amendment provides:

“All individuals are equal before the law and have the right to the equal protection and benefit of the law… All individuals have a right not to be discriminated against by a public authority”.


Although they sound similar they are different things. Equality before the law means that the law must apply equally to everyone, so outlawing laws that have a directly discriminatory purpose. However, equal protection and benefit of the law means that laws must not have a discriminatory impact or effect unless it is justifiable having regard to the policy aim—for example, a law which caps benefits may apply to everyone but, in practice, a large proportion of those affected may be lone mothers and children and therefore such a law could affect them disproportionately and be incompatible with the new right unless it could be justified.

The proposed new clause also calls for a ministerial statement of compatibility, which parallels what is required in the Human Rights Act. It will support effective parliamentary scrutiny of new laws as parliamentarians in both this House and the other place consider the Government’s explicit policy justification for any potentially regressive measure. The right to challenge discriminatory laws in the courts provides an essential mechanism to ensure that the new right is enforceable by those affected. It will not impact solely on justifiable different treatment, so ensuring that the courts can take account of the policy justification for the measure in question, and will provide the flexibility necessary to deal with new and unforeseen circumstances.

The enforcement mechanism in the amendment is the same as for the convention rights under the Human Rights Act, with which our courts are wholly familiar when considering compatibility of laws with fundamental rights. It is completely different and distinct from the scheme under the Equality Act 2010. The provision will operate alongside existing rights in the Equality Act 2010 but will not replace them. Where the Equality Act 2010 provides an exception to the prohibition of discrimination because Parliament has determined that specific conduct should not be unlawful, this would also be expected to be treated by the courts as justifiable under the new right for the same reasons.

This is an important proposal. It is intended to apply across the United Kingdom but obviously its application in Scotland, Wales and Northern Ireland would require discussion with the devolved Administrations. The amendment seeks to ensure that the equality rights which have been developed as part of our membership of the European Union—of which we are justifiably proud—will be proofed into the future as we leave the European Union. I commend the amendment to the House. I beg to move.

[Lord Adonis (Lab)]

My Lords, I have four amendments in this group. They raise exactly the same issues as those raised by the noble and learned Lord and I have nothing to add.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 70A, to which I have added my name. It has a forward-looking approach which addresses the need to set our homegrown equality standards against which new laws will be measured by our courts after we have left the EU. I am grateful to the EHRC for promoting this amendment and for its assistance with it.

Returning to our earlier debate about children’s rights, among other things, as the noble and learned Lord said, the proposed new clause provides protection for children against unjustified discrimination. This contrasts with the provision under the Equality Act 2010, under which children are not protected from age discrimination in the provision of services and public functions. It requires a Minister to make a statement of compatibility when introducing new legislation, which will include that it does not unjustifiably discriminate against children. It also provides a mechanism for children to challenge laws and actions by the state which have a discriminatory impact on them.

As I argued on Monday, it is important, as the UK leaves the EU, that children do not lose the important protections they currently enjoy under the Charter of Fundamental Rights. The proposed new clause would replace the EU safety net for children’s rights with the UK’s own guarantee of fair and equal treatment for children. In doing so, it sets domestic equality standards against which new laws will be measured and makes our domestic courts the arbiter of equality compliance. It is a necessary addition to our equality laws to protect rights as we leave the EU.

The need for adequate legal protection for children against the discriminatory impact of laws is demonstrated by the way different cases have fared in the courts recently. In one case, currently the subject of appeal by the Government, the High Court held that regulations implementing the social security benefit cap, to which the noble and learned Lord referred, are discriminatory and unlawful in their impact on lone parents with children under the age of two. In his judgment, Mr Justice Collins referred to the difficulty, and often impossibility, of lone parents with children under two being able to do paid work and concluded:

“Most lone parents with children under two are not the sort of households the cap was intended to cover…Real misery is being caused to no good purpose”.


In this case the claimants were able to rely on convention rights, yet an earlier case on the same issue but from a slightly different perspective had failed in part because of the difficulties in doing so. The point of the example is to ask why discrimination that affects the welfare of children should be subject to such legal complexities. We have heard today about the problems created by legal complexities. The proposed new clause provides a straightforward domestic solution to a clear right to non-discrimination by the state to replace the loss of protection provided to children as we leave the EU.

Women are another group for whom this amendment is especially important, not least because of the responsibility they still tend to have for the everyday care of children and older people. Organisations representing women such as Fawcett and the Women’s Budget Group, of which I am a member, are concerned about the potential impact on women of our withdrawal from the EU and fear the possible regression of women’s and related rights despite welcome assurances from Ministers. Like the noble and learned Lord, I too welcome the strong statement made by the noble Lord, Lord Duncan of Springbank, on Monday in our debates then. He gave strong assurances, particularly on the working time directive. Nevertheless, the research to which I referred on Monday and the experience of my noble friend Lady Crawley, which she recounted in the same debate, suggest that the history of the UK Government’s engagement with the EU on the development of equality law is not as rosy as Ministers repeatedly suggest. I am afraid that concerns remain about what might happen if and when we leave. In response to such concerns, as noble Lords have already heard, the Women and Equalities Committee stressed—to take a slightly different quote from its report—that:

“It is therefore important for the Government, during the process of leaving the EU, to ensure that robust equality protection is embedded at each milestone”.


This amendment is a means of doing just that at this very important milestone. Given all the Government’s assurances about their commitment to equality, I cannot think of a single reason why they should not want to accept this amendment.

At the start of 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? Many noble Lords subsequently referred back to that vital question. I believe that equality and human rights are fundamental values, which must stand at the heart of that Britain. Acceptance of this amendment would send a strong signal about the kind of country we want Britain to be.