European Union (Withdrawal) Bill

Lord Low of Dalston Excerpts

Wednesday 21st March 2018 Lords Chamber

Moved by

[Lord Low of Dalston]

242A: Schedule 7, page 52, line 16, leave out “section 7(1), 8 or 9” and insert “this Act”

[Lord Low of Dalston (CB)]

My Lords, in moving Amendment 242A I shall also speak to Amendment 245A. These amendments aim to rule out the use of delegated powers to amend the protection of equality and human rights provided by EU law.

As a matter of constitutional principle, changes to fundamental rights should be made by Parliament by primary legislation, not by Ministers through secondary legislation. However, as it stands, the Bill does not rule out such changes being made by delegated powers. Delegated powers could be used to change the fundamental rights currently protected by EU law, such as rights to protection of personal data, children’s rights, the rights of disabled people, the right to human dignity and protection from discrimination, as well as workers’ rights, protections for pregnant women and nursing mothers, and rights to maternity leave.

There is a prohibition on changes to the Human Rights Act 1998. This is welcome as evidence of the Government’s commitment to the entrenchment of equality and human rights, but the Bill needs to do more if that commitment is to be reliably delivered. The Human Rights Act safeguards only rights enshrined in the European Convention on Human Rights. Rights underpinned by EU law are different and need separate protection. To ensure this, it is essential that the Bill is amended to guard against excessive transfer of power from Parliament to the Executive and to ensure that any changes to fundamental rights are subject to full parliamentary scrutiny.

It is important to be clear that the new scrutiny procedures introduced in another place, though welcome, do not address this concern. They provide a mechanism in the form of a new sifting committee to recommend that the affirmative scrutiny procedure be used. However, this procedure does not allow Parliament to amend secondary legislation. The fact that it does not provide for effective scrutiny is demonstrated by the fact that there have been only 10 occasions since 1950 when delegated legislation has not been approved by Parliament under the affirmative scrutiny procedure. That is equivalent to one every six or seven years.

Stronger safeguards are therefore required in the Bill to exclude changes to equality and human rights from the scope of delegated powers and to require a Minister, when laying secondary legislation before Parliament under the Act, to make a statement that it does not reduce any protection provided under equality and human rights law. A number of amendments have already been debated that would provide these essential safeguards. I refer in particular to Amendments 82 and 82A in the name of the noble Baroness, Lady Hayter, which would prevent the use of secondary legislation under Clause 7 to make changes to the Equality Acts of 2006 and 2010; and Amendments 101A, 133A, 161 and 259 in the name of the noble Lord, Lord Adonis, which would prohibit the use of secondary legislation made under Clauses 7, 8, 9 and 17 to change laws relating to equality or human rights. I support those amendments. However, I wish to speak to two additional amendments, Amendment 242A and 245A, which continue to be necessary.

Amendments 242A and 245A, which emanate from the Equality and Human Rights Commission, give effect to the Government’s commitment that current protections in the Equality Acts of 2006 and 2010 will be maintained once we leave the EU by placing it on the face of the Bill. In their White Paper legislating for the UK’s withdrawal from the European Union, the Government promised that,

“all protections covered in the Equality Act 2006, the Equality Act 2010, and equivalent legislation in Northern Ireland …will continue to apply after we have left the EU”.

That welcome commitment followed the recommendation of the House of Commons Women and Equalities Select Committee that it is important that the Bill,

“explicitly commits to maintaining the current levels of equality protection”.

On the first day in Committee in the House of Commons, the Minister promised to introduce an amendment that would require,

“Ministers to make a statement before this House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act”.—[Official Report, Commons, 21/11/17; col. 904.]

That was in response to concerns raised in the debate by Maria Miller MP, chair of the Women and Equalities Select Committee. The Government made an amendment on this point in the Commons which is now at paragraph 22 of Schedule 7. However, it fails to fulfil the Government’s commitment to maintain current equality protections and has the potential to undermine understanding of Ministers’ existing statutory duties. The Government’s approach requires Ministers to make an explanatory statement, including in relation to equality issues, when laying secondary legislation made under Clauses 7, 8 or 9 of the Act. However, it does not require a statement that current levels of protection will be maintained. It merely requires the Minister to explain whether and how equality legislation has been changed and that “due regard” has been had to the need to eliminate conduct prohibited by the Equality Act 2010.

There is nothing to stop the Minister having had “due regard” to this need deciding to reduce protections. The duty to have due regard is already a requirement under the public sector equality duty and the Minister’s statement would do no more than confirm that she or he has partially complied with an existing statutory duty. Furthermore, the requirement focuses on the first duty in the public sector equality duty—namely, to have regard to the need to eliminate discrimination, presumably because of the emphasis that parliamentarians placed on ensuring non-regression during debates in the House of Commons. However, the public sector equality duty also includes other duties—to have regard to the need to advance equality of opportunity, and to foster good relations.

The focus on just one aspect of the public sector equality duty rather than the whole risks confusion about whether Ministers are obliged fully to comply with the whole of the public sector equality duty as opposed to just this single limb of the duty. This must be rectified to ensure clarity and compliance with existing statutory duties. Again, the requirement applies only to certain enabling powers in the Bill under Clauses 7(1), 8 or 9. However, changes could still be made, for example, under Clause 17, which provides a very wide power:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act”,


without the need for any explanatory statement.

Amendments 242A and 245A would remedy that deficiency by requiring a Minister, when laying secondary legislation before Parliament under any enabling provision in the Act, not just those clauses to which I have just referred, to make a statement that,

“it does not remove or diminish any protection provided by or under equalities legislation”.

I beg to move.

--- Later in debate ---

[Lord Low of Dalston]

My Lords, I am very grateful to all those who have spoken in support of my amendments; there has been very heavyweight support, if I may say so, from the noble and learned Lords, Lord Wallace of Tankerness and Lord Goldsmith, and very valued support from the noble Lord, Lord Cashman. I also thank the Minister for his reply. Since he was kind enough to describe my amendments as “constructive”, it would be less than gracious if I did not say that I regarded his response as constructive. The Minister has recognised the need to look further at the scope of the explanatory statements provided for in the Bill, and I welcome that.

There is room for further discussion about the extent of the enabling powers in the Bill, which are underpinned in this legislation. The Minister thinks that my amendments go too far in the enabling powers that we are seeking to include, while I suggest that the Bill does not go far enough, so there may be some scope for meeting in the middle. Since the Minister has kindly undertaken to review the scope of the provisions in the Bill before Report, I hope he might agree that it would be beneficial if we could have further discussion to see whether there is not some common meeting ground in the middle so that we can go forward to Report in a spirit of unanimity. On that basis, I am happy to beg leave to withdraw the amendment.

Amendment withdrawn.