My Lords, this Bill raises fundamental questions about not just the Brexit process and accountability to Parliament but also, as the right reverend Prelate reminded us in an inspiring speech, our vision of a good society post Brexit. In the Article 50 debate, I spoke about the sense of loss felt by myself and by many who wrote to me as we are stripped of our European citizenship and the fundamental rights it affords us. Membership of social Europe has contributed to many of the social and other rights we enjoy today. With regard to the current Bill, fears have been expressed by those speaking on behalf of, among others, women, children, disabled people, LGBT people and workers, and also environment protections. How far we are able to allay those fears by strengthening the protection provided for equality and human rights has to be a litmus test of the effectiveness of our scrutiny of the Bill.
The Equality and Human Rights Commission and others have proposed various ways of providing such protection, including the introduction of a constitutional right to equality; the implementation of a socioeconomic duty, contained in the Equality Act 2010; a means of keeping pace with wider European equality and human rights law; and inclusion in the Bill of a clause embodying the principle of non-regression of equality rights, as recommended by the Women and Equalities Committee, among others. On this last matter, the government amendment in the Commons does not go nearly far enough. It does not actually protect equality rights and it applies only to secondary legislation, despite the Minister’s commitment to the Commons that it would apply to primary legislation also. Can the Minister explain why the Government have reneged on that commitment?
The other main means open to us is to retain the European Charter of Fundamental Rights, the key piece of EU law expressly not brought over, contravening the Bill’s “general rule”,
“that ‘the same rules and laws will apply after exit as the day before’”.
I have read the debates in the Common and, unlike the noble and learned Lord, Lord Brown, I have yet to find a convincing argument to justify its exclusion. We are told that it is unnecessary because it adds nothing new. It will not affect substantive rights, the Leader of the House assured us. But in fact it includes certain rights and principles not covered elsewhere in our legislation, referred to in the Commons as a third category of rights, such as the right to dignity and a number of important children’s rights, including the fundamental duty to give primary consideration to children’s best interests. Can the Minister say how this duty will be protected in the absence of the charter or the incorporation of the UN Convention of the Rights of the Child into UK law?
The Bingham Centre for the Rule of Law warns:
“We will lose fundamental rights protection in certain areas”.
It points out, as did Lady Hermon in the Commons, that, without the charter, the obligation in the Good Friday agreement to an equivalence of human rights protection in Northern Ireland and the Republic is undermined. Can the Minister explain how that equivalence will now be maintained?
Even if, for the sake of argument, it were unnecessary, as the Government claim, what would be lost by now responding to the wide range of organisations, led by the statutory body with the responsibility for promoting equality and human rights, calling for its inclusion? Like the Constitution Committee, I do not understand why an exception should then be made to the general principle of legal continuity. Of course redundant rights specifically connected to EU membership could subsequently be removed, so that is no real argument. As it is, the Government’s position will be seen a symbol of the weakness of their commitment to human rights, despite protestations to the contrary.
The other argument, that to include the charter would sow confusion and legal uncertainty, is contradicted by the legal opinion obtained by the EHRC; by experts on European law, including the group convened by the Bingham centre and the UCL Constitution Unit; and by the appendix to the JCHR’s commentary on the right-by-right analysis, referred to earlier by the noble Baroness, Lady Hamwee. They argue the exact opposite: that its exclusion is a recipe for legal uncertainty. Surely the Government’s aim, as set out in the rather unconvincing right-by-right analysis,
“to maximise certainty and minimise complexity”,
is better met by having all these rights codified transparently in one place.
The Government repeatedly fall back on the protection provided by the Human Rights Act to counter calls for the charter’s inclusion. But given their earlier desire to repeal the Act, forgive me if I do not take much comfort from a commitment to it that is limited to the lifetime of the present Parliament. Wherever we stand on our exit from the EU, I hope that we can be united in our commitment to a society built on principles of equality and human rights, and therefore ensure the retention of the European Charter of Fundamental Rights as both a symbol and a cornerstone of that commitment.