European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, it was obvious from contributions at Second Reading and in Committee that this was a particularly thorny and sensitive issue. It is to the credit of the Government and not least to that of the Minister that they have been in listening mode and that a sensible arrangement has been reached. I heard what he said in response to the questions asked by the noble Lord, Lord Pannick, not least his affirmation of the independence of the judiciary. We have reached a satisfactory point. There is nothing I can usefully add. I will prove the point by not continuing to speak but by resuming my seat.

[Lord Spicer (Con)]

My Lords, I shall give a brief lay man’s perspective. Being brief, I shall follow the advice of the late Cecil Parkinson, who said to after-dinner speakers, “Get up, say you’re very proud to stand before them and sit down”. I shall be a little longer than that, but not very long.

I think that we can all agree on one thing: that pretty well all of us had a fixed view on Brexit before this Bill even reached this House. Tactics is a different matter. I am very interested in the remain tactics so far as the generality of the Bill is concerned; I shall come to the specifics in a moment. They seem to be along the lines of: “We absolutely agree that we are coming out—no, we’re serious; we agree we’re coming out—but we’re coming out to a new single market backed by a strengthened court in such a way that it is quite indiscernible that we have come out in the first place”. This debate is about the court and what part it is going to play in all this. I think that it is generally accepted that the court is not only very powerful but foreign—my noble and learned friend brilliantly summed up the foreignness of the law being introduced—and different. It is based on politics rather than on precedent in law.

I first came to this in 1992. On 3 June of that year, I tabled an Early Day Motion which started the rebellion against the Maastricht treaty, so I have some form. What is the relationship between a debate which was then concerned with the single currency and today’s debate and amendment? There is a close relationship with matters to do with the currency. As Henry VIII recognised, the currency is immensely important. “This Realm of England as an Empire” was all about changing our currency back to gain control over it. The currency is vital, and the question is what the relationship between it and today’s debate is. If we did not come out of the European Union, I would not rely on us retaining our currency and our control over it. It is unimaginable that the European court would decide to run a competitive trading arrangement with the one country left to manage its own economy. It is therefore of enormous importance not only to the future of this country but to this amendment.

We debated earlier whether it counts for anything that we have become so deeply embroiled in foreign law. I suppose that where I differ from lawyers is that I believe that there are things in politics that matter as symbols, even if the lawyers can prove otherwise. It is therefore vital that we kick out Amendment 21 today.

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Moved by

[Lord Wallace of Tankerness]

30A: After Clause 6, insert the following new Clause—
“Equality and discrimination
(1) The purpose of this section is to ensure that the withdrawal of the United Kingdom from the EU does not diminish protection for equality in domestic law.(2) Rights under equalities legislation are not to be removed or diminished.(3) In this section “equalities legislation” means the Equality Act 2006, the Equality Act 2010 and subordinate legislation made under either of those Acts.(4) In any proceedings in which a court determines whether a provision of primary legislation is compatible with subsection (2), if the court is satisfied that the provision is incompatible it may make a declaration to that effect.(5) Subordinate legislation is not law if and to the extent that it is incompatible with subsection (2).(6) Subsection (5) does not apply to a provision of subordinate legislation if made in the exercise of a power conferred by primary legislation which prevents avoidance or removal of the incompatibility.(7) In any proceedings in which a court determines whether a provision of subordinate legislation is compatible with subsection (2), if the court is satisfied that subsection (6) applies the court may make a declaration of the incompatibility.(8) Section 10 of the Human Rights Act 1998 (power to take remedial action) applies in relation to a declaration of incompatibility under subsection (4) or (7) of this section as it applies in relation to a declaration of incompatibility under section 4 of that Act.(9) Section 19 of the Human Rights Act 1998 (statements of compatibility) applies in relation to compatibility with subsection (2) of this section as it applies in relation to compatibility with the Convention rights.”

[Lord Wallace of Tankerness]

My Lords, I beg to move Amendment 30A in my name and those of the noble Lord, Lord Low of Dalston, and the noble Baroness, Lady Lister of Burtersett. I know it also enjoys the support of the noble Lord, Lord Cashman. Today’s proceedings on the Report stage of the Bill started with a debate on the Charter of Fundamental Rights and we finish with a debate on equality and rights of a slightly different nature but no less important, albeit that the number of Peers in the Chamber does not quite reflect that. However, that is more likely to do with the time of day.

I put on record my thanks and those of the noble Lord, Lord Low of Dalston, to the noble and learned Lord, Lord Keen of Elie, who took time last week to meet us together with an official from the Equality and Human Rights Commission regarding the protection of equality rights after we leave the European Union. It was a constructive meeting but we nevertheless feel that this amendment remains necessary. It is often said that one of the three great promises is, “I am from the Government and I am here to help”. This is the other way around; although we are in opposition, we are here to help the Government. The Government themselves said in last year’s White Paper about what was then referred to as the great repeal Bill, but which has rather diminished in its title since then, that all the protections covered by the Equality Act 2006, the Equality Act 2010 and the equivalent legislation in Northern Ireland will continue to apply once the United Kingdom has left the European Union.

That is what we seek to secure by way of this amendment. The first subsection of the proposed new clause states:

“The purpose of this section is to ensure that the withdrawal of the United Kingdom from the EU does not diminish protection for equality in domestic law”.


The equality directives currently provide a set of minimum standards in relation to equality rights, and the requirements of these directives are reflected in the Equality Act 2010. It is fair to say that over the years there have been occasions when the European Union has set minimum standards and UK Governments of various descriptions have gone further than those standards, while on other occasions we have required the European Union, as it were, to push us along in securing equality rights. However, the primacy, as we have it today, of European Union law means that domestic laws implementing EU rights-enhancing directives, including those in the Equality Act 2010, cannot be removed while the UK remains bound by EU law, except by agreement at the EU level.

Those equality directives include the race directive of 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. The framework directive 2000/78 established a general framework for equal treatment in employment and occupation. The gender goods and services directive of 2004 implemented the principle of equal treatment between men and women in access to and supply of goods and services, while the recast gender directive of 2006 saw the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. In addition to these specific equality directives, also relevant is Article 157 of the Treaty on the Functioning of the European Union which establishes the principle of equal pay for work of equal value, something that has not been far from the headlines in recent weeks. The directives to which I have referred, together with Article 157, collectively provide a set of minimum standards of protection against discrimination at work on the grounds of racial or ethnic origin, sex, religion or belief, age, disability and sexual orientation. The race and gender goods and services directives provide protection against discrimination on the grounds of race and sex in accessing goods and services, while the race directive also extends to social protection and healthcare, social advantages and education. As I have said, the requirements of these directives are reflected in the Equality Act 2010.

However, despite the Government’s political commitment not to reduce these protections after the United Kingdom leaves the European Union, there is nevertheless a risk that without embedding the principle of non-regression within the Bill, these rights could be undermined in the future once the minimum standards set by EU law are no longer binding on the United Kingdom. For example, while the right to equal pay for work of equal value and many of our protections from discrimination cannot be removed while the United Kingdom remains part of the EU, they could be removed after we leave.

This matter was addressed by the Women and Equalities Select Committee in the other place. In its report published last February, the committee concluded that,

“ensuring 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 EU”.

What we see in the Bill is a transposition of existing EU law. The Select Committee said that we had to go further than doing simply that and entrench equality in the United Kingdom legal and policy framework. This amendment was prepared in consultation with the Equality and Human Rights Commission and we believe it does just that by providing that existing rights under the Equality Acts 2006 and 2010 will not be removed or diminished. It sets out two mechanisms to do so, mirroring those in the Human Rights Act 1998, by requiring a Minister to state when new legislation is introduced to Parliament whether it is compatible with the requirement not to reduce existing protections, as well as by allowing UK courts to assess the compatibility of new laws with this requirement. We believe that this is in line with the recommendation in the Women and Equalities Committee’s report that there is a need to empower Parliament and the courts to declare whether legislation is compatible with UK principles of equality.

The proposed new clause would provide equivalent protections for equality rights after exit day as before because it replaces the foundation of the rights currently provided by EU law with an equivalent domestic underpinning. I assure the House that, in drafting the new clause, attention was paid to concerns raised by the Government in Committee about an earlier proposal to create a new, free-standing right to equality. In response to that debate, the noble Lord, Lord Callanan, stated:

“The bottom line is that substantive new rights are not consistent with the intended purpose of the Bill, which is about maintaining the same level of protection on the day after exit as before”.—[Official Report, 7/3/18; col. 1168.]


The proposed new clause would maintain equivalent protection for equality rights after exit day by simply replacing the foundation for our equality rights currently provided by EU law with an equivalent underpinning in our domestic law. In doing so, we respect the United Kingdom’s constitutional position by applying the same approach as the Human Rights Act and we respect parliamentary sovereignty because the proposed new clause would limit the role of the court in relation to primary legislation to making a declaration of incompatibility, rather than invalidating or striking down primary legislation, as is currently the case under EU law. In that sense, it is a somewhat weaker underpinning than the current level of protection, but we believe that this approach would strike an appropriate balance between ensuring non-regression of equality rights after we leave the EU and returning control to Parliament to have the final say on our laws after exit day.

Having been a Minister in both the Scottish Government and the United Kingdom Government, I know that there has to be compatibility in the United Kingdom with the Human Rights Act and the European Convention on Human Rights; in fact, it is wider in Scotland in that there has to be a declaration of compatibility and being within competence. That focuses Ministers’ minds and, very often, things are changed. No one is saying that a deliberate attempt would be made to undermine what in that case would be human rights but in this case would be equality, but when the tests are applied and people are obliged to look at them, they may find things there that would reduce rights. Therefore, it is a very good test because it ensures that equality rights are not eroded, even through the unintended consequence of a particular provision.

I do not believe that this is fanciful. As a member of the coalition Government between 2010 and 2015, I put my hands up: concerns were expressed that parts of the Red Tape Challenge could have eroded some equality rights during that period. Indeed, in its January review of sex discrimination law, the Fawcett Society stated:

“Without the backstop of the EU … There are good reasons to believe that this presents a real risk to equality legislation. For example, the 2011 Beecroft report, commissioned as part of the ‘Red Tape Challenge’, included proposals to cap discrimination damages awards. This was prevented by the Court of Justice of the European Union, which had ruled in 1993 that damages for sex discrimination could not be limited. That report also proposed a number of other retrograde steps, including opt-outs of equalities requirements for small businesses”.


I commend this proposed new clause to the House. It will send a positive signal that we still wish to be at the forefront of protecting equality rights once we have left the European Union. We seek here a robust underpinning of these equality rights, as currently guaranteed by the European Union. I beg to move.

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[Lord Callanan]

I thank noble Lords for their time and consideration on the important issue of how we maintain our equality protections as and after we leave the EU. There really is no difference between us in our commitments to these important issues. Amendment 30A, in the name of the noble and learned Lord, Lord Wallace of Tankerness, follows on from the debate we had in Committee in that it seeks to reflect in statute the political commitment that the Government have already made in this area—that is, that we will maintain the existing protections in and under the Equality Acts 2006 and 2010 after our exit from the EU.

I must, however, be clear with the noble and learned Lord that we have three concerns about his suggested approach. First, there is the issue of language, context and potential for conflicting rights. Put simply, the language of a political commitment does not translate to the statute book. Therefore, let me say to my good noble friend Lord Cashman that while our commitment to existing equality protections works perfectly well politically—we are committed to them here and in the wider world outside this place—it must be noted that terms such as “protection” and “diminish” do not have a sufficiently clear and precise meaning for the purposes of statute. As a consequence, the amendment runs a very real risk of creating tensions for real people, with real interests that may be difficult to resolve between existing and potential future rights that we may wish to legislate for.

To give an example, noble Lords may be familiar with the experiences on buses of some passengers who use wheelchairs, and the difficulty that they have sometimes had in accessing the space theoretically available to them when it has been taken by people, often parents with young children in pushchairs. The question arises as to whose rights take priority, especially as, arguably, both parties are covered by “protected characteristics” provided for in the Equality Act 2010. This particular example of potentially conflicting rights is being resolved, following a court judgment that passengers who use wheelchairs have priority. However, I trust this helps illustrate the risk of future developments in equality law being, in effect, struck down in the courts because, while they might benefit certain groups, these benefits might come at the expense of rights in retained EU law secured under this Bill. As has been noted, the Equality Act 2010 is lengthy, detailed and specific in order to avoid questions of competing or conflicting rights. Setting it in stone against any future equality issues we or future Governments may wish to provide for runs fundamentally against the grain of the Act and our developing and dynamic approach to equality rights in this country.

Our second concern is closely related in that we fear this new clause would create considerable legal uncertainty. Indeed, the noble and learned Lord has recognised this by including proposed subsections (4) and (7) which describe what a court may do when faced with an issue of the compatibility or otherwise of new provisions and existing equality rights. I hope he will understand when I say that, especially in the context of our exit from the EU, we think it is vital to keep to an absolute minimum any legal uncertainties that may arise for the good of businesses and individuals, so a new clause that seems positively to embrace such uncertainty is not an attractive prospect. It is not at all clear what businesses or individuals are supposed to make of any rights and obligations that might apply to them pending the emergence of the case law that the new clause anticipates.

Finally, there is the relationship between the proposed new clause and the Human Rights Act 1998, the architecture of which reflects the existence of the European convention. The noble and learned Lord’s text uses key concepts from the HRA, notably declarations of incompatibility and their consequences, and proposed subsections (8) and (9) directly cross-refer to sections of the HRA. This simply is not appropriate. Indeed, at the risk of echoing my earlier point, we believe these linkages would lead to uncertainty and confusion. There is, for example, no explanation of what the effect of declaration of incompatibility would be in this context. Would the primary legislation continue to have effect or not? There is clearly potential for gaps and contradictions to develop between challenges and actions based on the new clause as opposed to the HRA and its existing reference to the prohibition of discrimination under Article 14 of the European Convention on Human Rights.

I have already alluded to our clear public commitment to maintaining existing equality protections, and I am very happy to repeat that commitment now. While I understand the noble and learned Lord’s best intentions in this area, I must gently suggest to him that the interests of equality rights on our statute book are not well served by his proposed new clause and I hope that he will feel able to withdraw it. For the avoidance of any doubt, the Government will not be reflecting further on this matter, so if he wishes to do so, he should test the opinion of the House this evening.

[Lord Wallace of Tankerness]

The Minister should not tempt me. I am grateful to him for his reply, which was probably a bit more substantive than ministerial replies to the previous two debates, although it was, equally predictably, negative.

I do not think that the Minister’s arguments bear too much scrutiny. He complained about the language used in my amendment and said that it is difficult to put a political commitment on to a statutory basis. He was challenged by the noble and learned Lord, Lord Goldsmith. If the wording here is not right, what are the Government proposing to do to give underpinning? I do not think that at any point in reply to this debate did the Minister indicate that there is no need for a proper underpinning of the equality rights we have. Indeed, given the Government’s commitment to maintaining them, one assumes that the Government believe that they should continue and be underpinned. If the wording proposed is not right, there is a deafening silence from the Government’s side about what words they would use. The Minister raised the declaration of incompatibility and whether that meant striking down. I think I made it clear, as did the noble Lord, Lord Low of Dalston, that we do not mean striking down. What we seek in this amendment is to make it consistent with the principle of parliamentary sovereignty after we leave the European Union.

It is said that the clause conflicts with the Human Rights Act. I confess that my party and I have argued many times for a written constitution for the United Kingdom, but we are always told that one of the benefits of the unwritten constitution is its flexibility. So we introduced into our constitution a Human Rights Act with some very good provisions; the noble and learned Lord, Lord Goldsmith, indicated some of the focus of attention and consideration that that Act places upon Ministers when they consider compatibility. If we have that, what is wrong? What is the constitutional fault in using that good practice to extend into another area where we are talking about something fundamental?

That is the concluding point because this is a fundamental question. The noble Baroness, Lady Lister, and the noble Lord, Lord Cashman, reflected on what kind of country we want to be. The Government set out in their White Paper last March that they want to respect and cherish equality rights. There is common ground on that. What we have not seen from the Government is a way in which they can ensure that that is underpinned as we go forward, so that we can ensure that that characteristic of what kind of country we want to be can be maintained without threat. I find it very regrettable but the night is a bit too late to test the opinion of the House, so I beg leave to withdraw the amendment.

Amendment 30A withdrawn.