European Union (Withdrawal) Bill

Lord Low of Dalston Excerpts

Wednesday 7th March 2018 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I too rise to speak in support of Amendment 70A, which has just been moved by the noble and learned Lord, Lord Wallace of Tankerness, and spoken to by the noble Baroness, Lady Lister.

I apologise that I did not speak at Second Reading. My apology is in the same terms as that of the noble Lord, Lord Paddick, on the second day in Committee, who explained that he had taken the view that he was unlikely to be able to add anything new, bearing in mind the large number of speakers.

As we have heard from the last two speakers, the Government have strongly proclaimed their intention of maintaining existing equality protections once we leave the European Union. The proposed new clause contained in Amendment 70A provides the means of ensuring that this intention is fulfilled. It is thus in very much the same case as Amendment 66, which, as the noble Lord, Lord Deben, pointed out, does nothing more than what the Government want to ensure. It addresses concerns raised by the Women and Equalities Committee in another place, as we have heard—concerns that our exit from the European Union risks losing the entrenchment of our rights, provided by their under- pinning in EU law. To achieve this, the UK needs to replace the EU’s equality safety net with our own right to equality.

We in Britain are rightly proud that we have the strongest equality law in the world, which, in many areas, goes beyond what EU law requires. Yet some important protections—for example, for disabled people, who are naturally very close to my heart—as a result of the impact of EU law go beyond what we have been ready to do domestically. For example, the Coleman case in the European Court of Justice established that it is unlawful to discriminate against individuals because they care for a disabled person. When the underpinning of the EU law is taken away, there is a real risk that a future Government could seek to chip away at such protections. We have already seen this in the Red Tape Challenge under the coalition Government, when the existence of the EU safety net protected much of the Equality Act 2010, but we still saw provisions outside the EU directives being undermined. Many important protections in the Equality Acts could not have been changed at that time because they were part of EU law, as well as our own law. After Brexit, this will no longer be the case. Areas that some commentators have suggested may be at risk post Brexit even include aspects of equal pay legislation. This clause will set the equality standard against which new laws will be measured and make our courts the arbiter of equality compliance.

We have already heard what the Women and Equalities Committee stressed: ensuring that equality protections are maintained is not simply a matter of transposing existing EU law. To protect rights, the Government need to take active steps to embed equality into domestic law and policy. The proposed new clause specifically protects against disability discrimination and requires that a Minister must make a statement of compatibility when introducing new legislation. Specifically, this must include an undertaking that it does not discriminate on grounds of disability. This establishes an important mechanism for holding the Government to account in relation to new measures with a potential impact on disabled people. The clause also provides a mechanism for disabled people to challenge laws and actions taken by the state that have a discriminatory impact.

Sadly, it is all too true that the rights of disabled people need further protection in this way. For example, the High Court found, as recently as December of last year, that regulations determining entitlement to personal independence payment unlawfully discriminated against disabled people. The court held that the regulations were “blatantly discriminatory” against those with mental health impairments and that they were manifestly without reasonable foundation. In that case, the claimant was able to rely on her rights under the European Convention on Human Rights because she was able to show that the personal independence payment scheme falls within article 1 of the first protocol to the convention, which protects property rights. Therefore, the right not to suffer discrimination in the enjoyment of a convention right under article 14 of the convention was engaged. However, obtaining a remedy for such discrimination should not depend on whether the discrimination can be tied to a convention right. That is why a free-standing right to equality in UK law is needed, which is what the proposed new clause is intended to achieve.

[Lord Cashman (Lab)]

My Lords, I rise briefly to speak in favour of these amendments. I preface my remarks by saying that I agree absolutely with my noble friend Lady Lister of Burtersett. Human rights, fundamental freedoms and civil liberties define a country and its approach to civilisation. I remember 30 years ago looking on in horror as discrimination was visited on lesbians, gay men and bisexuals in this country by the then Conservative Government in Section 28 of the Local Government Act. That should remind us that there is never a continuous progressive line on equalities and human rights, and that we need to reinforce the protections that we have.

It is essential to guard against the excessive transfer of power from Parliament to the Executive and to ensure that any changes to fundamental rights and freedoms are subject to full parliamentary scrutiny. I believe that is a matter of constitutional principle, as I have said on many occasions in your Lordships’ House and it bears repetition.

New scrutiny procedures introduced in the other place do not address this concern. They provide a mechanism, in the form of a sifting committee, to recommend—I emphasise “to recommend”—that the affirmative scrutiny procedure be used. I look forward to the Minister’s confirmation that such a recommendation does not have to be accepted by the Minister. Furthermore, stronger safeguards are required in the Bill to exclude changes to equality and human rights from the scope of these delegated powers.

I turn to Amendment 70A, having dealt with the principles of Amendments 161, 259 and the others in this group. I congratulate the noble and learned Lord, Lord Wallace of Tankerness, on the way he introduced it, and the noble Lord, Lord Low, and my noble friend Lady Lister. Amendment 70A would introduce a new clause to ensure that the rights to equality presently enjoyed in accordance with EU law are enshrined in domestic law after the UK leaves the EU. Therefore, there is arguably no reason why the amendment should not be accepted. Indeed, for the Government to deliver on their commitment to non-regression on these rights, the UK needs to replace the EU’s equality safety net, referred to by the noble and learned Lord, with our own domestic right to equality. Amendment 70A would achieve this by setting a standard that all individuals are equal before the law and have a right not to be discriminated against by a public authority. For these reasons and many others, particularly the lessons of history, I support the amendment and others in the group.

--- Later in debate ---

[Lord Low of Dalston]

My Lords, if the noble and learned Lord, Lord Wallace, does not want to respond to the question from the noble and learned Lord, Lord Mackay, perhaps I might have a go. If I heard him and remember correctly, the noble and learned Lord asked what the relationship to this amendment would be if the Government were to introduce their own right to equality. If that is the question, the answer is quite straightforward. If the Government were to bring in their own freestanding right to equality, they would essentially have accepted the amendment and there would be no need for it because they would have introduced it into primary legislation of their own motion.

[Lord Mackay of Clashfern]

My Lords, I am sorry but that is not exactly the question, which was on the effect of the retained EU law brought into this country, assuming it is given the status of primary legislation. That is a different question from the one the noble Lord, Lord Low, has kindly answered. But it is quite an important question, because there is a danger at least of a degree of conflict between the two. It is just a question that I do not know the answer to.