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 believes 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.
10.45 pm