Charter of Fundamental Rights – Government Report

Part of European Union (Withdrawal) Bill – in the House of Commons at 12:54 pm on 21st November 2017.

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Photo of Eleanor Laing Eleanor Laing Deputy Speaker (First Deputy Chairman of Ways and Means) 12:54 pm, 21st November 2017

With this it will be convenient to discuss the following:

New clause 78—Consequences of leaving the European Union: equality—

“(1) This section comes into force when the power under section 14 to appoint exit day for the purposes of this Act is first exercised.

(2) The purpose of this section is to ensure that the withdrawal of the United Kingdom from the European Union does not diminish protection for equality in the law of the United Kingdom.

(3) All individuals are equal before the law and have the right to the equal protection and benefit of the law.

(4) All individuals have a right not to be discriminated against by any public authority on any grounds including sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.

(5) The following provisions of the Human Rights Act 1998 apply in relation to the rights conferred by subsections (3) and (4) as they apply in relation to Convention rights within the meaning of that Act—

(a) section 3 (interpretation of legislation);

(b) section 4 (declaration of incompatibility);

(c) section 5 (right of Crown to intervene);

(d) section 6 (acts of public authorities);

(e) section 7 (proceedings);

(f) section 8 (judicial remedies);

(g) section 9 (judicial acts);

(h) section 10 (power to take remedial action);

(i) section 11 (safeguard for existing human rights); and

(j) section 19 (statements of compatibility).

(6) A court or tribunal must have regard to any relevant decisions of the European Court of Human Rights in considering—

(a) the application of this section generally, and

(b) in particular, the meaning of discrimination for the purposes of this section.”

This new clause would ensure that the rights of equality presently enjoyed in accordance with EU law are enshrined in free-standing domestic law after the UK leaves the EU.

New clause 79—Provisions relating to the EU or the EEA in respect of EU-derived domestic legislation—

“(1) Notwithstanding the provisions of section 5(1), HM Government shall make arrangements to report to both Houses of Parliament whenever circumstances arising in section 2(2)(d) would otherwise have amended provisions or definitions in UK law had the UK remained a member of the EU or EEA beyond exit day.

(2) Notwithstanding the provisions of section 5(1) and having reported to both Houses of Parliament, HM Government is bound to consider whether it should incorporate amended provisions or definitions into UK law, in order to ensure that the rights of workers and employees in the UK are no less favourable than they would have been had the UK remained a member of the EU or EEA beyond exit day.

(3) Such circumstances arising in section 2(2)(d) include but are not limited to—

(a) any future EU Directives relating to family-friendly employment rights; including but not limited to rights for pregnant workers and employees, and those returning from maternity leave,

(b) any future EU Directives relating to gender equality,

(c) the proposed Directive of the European Parliament and of the Council on work-life balance for parents and carers.

(4) Reports presented under subsection (1) must include—

(i) an assessment of how such amendments to UK law would have impacted sex equality in the UK had the UK remained a member of the EU or EEA beyond exit day and

(ii) an assessment of how a failure to implement amended provisions or definitions in UK law will impact the ability of families to combine work and care in the UK and gender equality in the UK.”

This new clause would ensure that Parliament is informed of changes in EU and EEA provisions that might have amended UK laws around family-friendly employment rights and gender equality and their potential impact, as well as committing the Government to considering their implementation. This is to ensure that rights of workers and employees with caring responsibilities, and women’s rights, are no less favourable than they would have been had the UK remained a member of the EU or EEA beyond exit day.

Amendment 297, in clause 5, page 3, line 11, leave out “or rule of law”.

This amendment would remove the reference to a rule of law passed or made before exit day.

Amendment 285, page 3, line 12, after “exit day” insert—

“as appointed for the purposes of this section (see subsection (5A)”.

This paving Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 298, page 3, line 15, leave out “or rule of law”.

This amendment would remove the reference to a rule of law passed or made before exit day.

Amendment 299, page 3, line 17, leave out “or rule of law”.

This amendment would remove the reference to a rule of law passed or made before exit day.

Amendment 8, page 3, line 20, leave out subsections (4) and (5).

To allow the Charter of Fundamental rights to continue to apply domestically in the interpretation and application of retained EU law.

Amendment 46, page 3, line 20, leave out subsection (4).

This amendment would remove the exclusion of the Charter of Fundamental Rights from retained EU law.

Amendment 151, page 3, line 26, at end insert—

“(5A) Within three months of the commencement of this section, the Secretary of State must lay before Parliament regulations to create a fundamental right to the protection of personal data.

(5B) A statutory instrument containing regulations under subsection (5A) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”

Clause 5(4) of the Bill excludes the Charter of Fundamental Rights from the ‘incorporation’ powers in the Bill. This amendment would require the Secretary of State to replicate Article 8 of the Charter (the Right to Protection of Personal Data) in UK domestic law within three months of the commencement of Clause 5.

Amendment 286, page 3, line 26, at end insert—

“(5A) The exit day appointed (in accordance with section 14 and paragraph 13 of Schedule 7) for the purposes of this section must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”

This Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Clause 5 stand part.

Amendment 10, page 15, line 5, in schedule 1, leave out paragraphs 1 to 3.

To allow challenges to be brought to retained EU law on the grounds that it is in breach of general principles of EU law.

Amendment 101, page 15, line 17, leave out paragraph 2 and insert—

2 (1) Any general principle of EU law will remain part of domestic law on or after exit day if—

(a) it was recognised as a general principle of EU law by the European Court in a case decided before exit day (whether or not as an essential part of the decision in the case);

(b) it was recognised as a general principle of EU law in the EU Treaties immediately before exit day;

(c) it was recognised as a general principle of EU law by any direct EU legislation (as defined in section 3(2) of this Act) operative immediately before exit day; or

(d) it was recognised as a general principle of EU law by an EU directive that was in force immediately before exit day.

(2) Without prejudice to the generality of sub-paragraph (1), the principles set out in Article 191 of the Treaty on the Functioning of the European Union shall be considered to be general principles for the purposes of that sub-paragraph.”

This amendment clarifies that all the existing principles of EU law will be retained within domestic law whether they originate in the case law of the European Court, the EU treaties, direct EU legislation or EU directives. It also makes clear that the key environmental law principles in Article 191 of the Treaty are retained.

Amendment 336, page 15, line 17, leave out paragraphs 2 and 3 and insert—

2A (1) Any general principle of EU law will remain part of domestic law on or after exit day if—

(a) it was recognised as a general principle of EU law by the European Court in a case decided before exit day (whether or not as an essential part of the decision in the case);

(b) it was recognised as a general principle of EU law in the EU Treaties immediately before exit day;

(c) it was recognised as a general principle of EU law by any direct EU legislation (as defined in section 3(2) of this Act) operative immediately before exit day; or

(d) it was recognised as a general principle of EU law by an EU directive that was in force immediately before exit day.

2B Without prejudice to the generality of paragraph 2A, the principles set out in Article 191 of the Treaty on the Functioning of the European Union shall be considered to be general principles for the purposes of that paragraph.

2C For the purposes of paragraphs 1A and 1B the exit day appointed must be the same day as is appointed for section 5(1) of this Act and must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”

This amendment would retain the existing principles of EU law within domestic law whether they originate in the case law of the European Court, the EU treaties, direct EU legislation or EU directives. The freeze date would be at the end of any transitional arrangements.

Amendment 105, page 15, line 21, leave out paragraph 3.

This amendment leave out paragraph 3, thus retaining the right of action in domestic law in relation to general principles of EU law.

Amendment 62, page 15, line 28, leave out paragraph 4.

This amendment would remove the proposal to end rights in UK domestic law after exit day in relation to damages in accordance with the rule in Francovich.

Amendment 139, page 15, line 29, at end insert—

“except in relation to anything occurring before that day”.

This amendment, together with Amendments 140 and 141, would restore the right to obtain damages after exit day in respect of governmental failures before exit day to comply with European Union obligations.

Amendment 302, page 15, line 29, at end insert—

“except in relation to anything occurring before that day.

(2) “Anything occurring before that day” in sub-paragraph (1) shall be taken to mean any action commenced before or after exit day in relation to any act before exit day.”

This amendment would enable actions to be brought under the Francovich rule either before or after exit day if they related to an act before exit day.

Amendment 335, page 15, line 29, at end insert—

“, except in cases whereby the breach of Community law took place on or before exit day.

4A For the purposes of paragraph 4 the exit day appointed must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”

This amendment ensures that the right to obtain damages if the Government fails to uphold its obligations continues as long as the UK remains under the existing structure of rules and regulation.

Amendment 126, page 15, line 32, after “Rights” insert “or”.

This amendment is consequential on Amendment 62.

Amendment 127, page 15, line 33, leave out

“or the rule in Francovich”.

This amendment is consequential on Amendment 62.

Schedule 1 stand part.