European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

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

[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.

--- Later in debate ---

[Lord Russell of Liverpool]

That committee was chaired by Sir William Cash and included a certain Member for the 18th century, Mr Rees-Mogg, so I think that we can conclude that it was clearly completely impartial. We have got the message.

The question that we are posing to the Government, in response to a wide range of representations which many of us have had, is whether they will honour their commitment to defend the rights of children as we come through this process.

I mentioned at Second Reading that scrutinising and discussing this Bill in a non-partisan and apolitical way might be helpful, so I have a specific question for the Minister: does he have a twin brother or a doppelganger? Can he be same person who on 30 January was responsible for writing two articles? One of them appeared on the ConservativeHome website and said:

“From the beginning we have been clear that we need—and indeed want—to adopt a collaborative approach and listen to the views of Parliamentarians from all sides of the House. The necessity and sheer scope of this legislation means that thorough debate and examination is more important than ever. We took this approach in the House of Commons and we will continue to do so in the Lords … The House of Lords has a well-deserved reputation for its detailed and thorough scrutiny. This Bill should be no exception—it will benefit from the forensic examination the Lords can bring and we look forward to that razor-sharp review”.


On the same day, in the Sun newspaper, he wrote:

“We are seeing a co-ordinated push by the defeated elites; the Europhiles will use their majority in the Lords—a majority that rests heavily on quangocrats and busybodies, some of them in receipt of fat Brussels pensions”—


which possibly includes Members of the European Parliament—and:

“For the Lords to overturn a result supported by more British voters than anything else in history would be outrageous”.


He described some of your Lordships as scheming Peers who want an anti-democratic coup. So I have two more questions for the Minister; could he share with us what he had for breakfast the day he wrote those two reports, because I shall try to avoid eating the same? Secondly, did he ever consider a career in the Foreign Office?

Let us please forget the unending politics and focus on the children, whose voice and interests have hardly been top of mind as a rather unseemly procession of opinionated individuals compete for media airtime and attention. I recall noble Lords to the fact that I am speaking to Amendments 37 and 70. Amendment 37 aims to bring into domestic law the parts of the European Charter of Fundamental Rights into UK law that are necessary to protect children’s rights. I appreciate that we are not going to bring the charter overall into our law; however, it has some very important provisions: the child’s best interests must be a primary consideration in all actions, children’s views may be expressed and shall be taken into consideration, and children have a right to maintain a personal relationship with both their parents unless that is contrary to their interests. It contains other articles, as other noble Lords have mentioned, including on education and the prohibition of slave labour—the Minister will be aware that our Prime Minister has a particular interest in anything to do with child slavery.

Amendment 70 goes about achieving the same end in a different way. The UNCRC is viewed by most of us as the gold standard. The Government have stated that the source of the rights of the child set out in Article 24 of the European Charter of Fundamental Rights stem from the UNCRC, but as others have mentioned, it is not incorporated into domestic law. We share the concerns outlined by the Joint Committee on Human Rights in its recent report, Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis. There are several examples of where the UNCRC and the charter have fundamentally helped where there are gaps in our own law. Among these are cross-border family breakdown; the right to be forgotten and data protection; and where 17 year-olds, who are still children under the law, are arrested and treated as if they are adults, which is against the law.

I believe that we must protect the hard-won protections of children and ensure that they are not inadvertently lost. I also support Amendments 68, 69 and 97, all of which are simply trying to probe the Government, to understand how they see the way forward. What all of us are saying is that, however we go forward, we must ensure that in no way, shape or form are the rights and protections of children in any way impaired.

[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?

[Baroness Lister of Burtersett]

The noble and learned Lord may remember that in my speech, which was about the UN convention rather than the charter, I cited a case, which I am sure he is familiar with—R(SG) v Secretary of State for Work and Pensions—where three of the judges, including the noble and learned Baroness, Lady Hale, found that the Department for Work and Pensions was in breach of the UNCRC, but because it was not incorporated they could not find against the Government and said that it was for Parliament. Here is a clear example of where three out of five judges found that children’s rights in the charter—the best interests of the child—were not being treated as a primary concern, yet they could not find for those families.

[Lord Brown of Eaton-under-Heywood]

I was going to come specifically to that case but, as I understand it, it was put forward not as a charter case but as a UNCRC case. I am not talking about that yet; I am talking about the charter because if it would not avail those children, then what is the point and why is it so important to incorporate those provisions of the charter? The UNCRC is a completely distinct point. I acknowledge that there may be a case and if that case is made good and establishes in full measure the proposition which the noble Baroness is advancing, it may be sensible, whether in this legislation or somewhere else—it would not logically take any part in this Bill—to incorporate the convention into domestic law. I acknowledge that it has not been. But unless you can show that something is to be lost by not continuing to honour the charter—if you fail to do that—with respect, it does not make any logical sense to bring in the UNCRC at this point of the Bill. I hope that the Committee can follow the logic of the way I put that.

I do not really want to spend a long time on this. The noble Lord, Lord Foulkes, and I are even more concerned about Article 25 and the rights of the elderly. That charter right is put in this way and it is worth incorporating what it says:

“The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life”.


That is of course an admirable sentiment, a great principle and a suitable aspiration. But is it really said to be an enforceable right, which the courts would pay regard to if they had already rejected the claim under the common law and the convention? With the best will in the world, it does not make sense. I do not want to rain more heavily on everybody’s parade but I respectfully submit that it would not be a good idea to adorn this Bill, which has a limited aim, with these additional rights that logically do not stem from the ending of the charter.