My Lords, I thought we would never get there. I shall speak also to Amendment 83E. These amendments have been drafted by the Equality and Human Rights Commission, and I should declare my interest as having just been appointed to the disability advisory committee of the EHRC. I have retabled these amendments to give full 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. As the Minister knows, I have concerns that powers in the Bill could be used to change fundamental rights currently protected by EU law.
Noble Lords who have followed this debate will know that the Government tabled an amendment in the Commons in response to calls for the Bill to include a commitment to ensure current protections in the Equality Acts of 2006 and 2010 will be maintained after Brexit. This is now enshrined in paragraph 22 of Schedule 7. However, as I have said before, this does not properly fulfil the Government’s commitment to maintain current equality protections. Amendments 83A and 83E put this right by requiring a ministerial statement that secondary legislation made under the Bill does not reduce protections under equality legislation.
I take this opportunity to thank the noble and learned Lord, Lord Keen of Elie, for taking the time to meet the noble and learned Lord, Lord Wallace of Tankerness, and me to discuss our concerns about equality rights after we leave the European Union. Paragraph 22 of Schedule 7 does not fulfil the Government’s commitment because 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 paid 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 anyway. The duty to have due regard is already a requirement under the public sector equality duty, and the Minister’s statement will do no more than simply confirm that they have partially complied with an existing statutory duty.
The requirement focuses on the first duty in the public sector equality duty: to have regard to the need to eliminate discrimination. 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 PSED, rather than the whole, risks confusion about whether Ministers are obliged to fully comply with the whole public sector equality duty, as opposed to just this single limb of it. This must be rectified to ensure clarity and compliance with existing statutory duties.
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The requirement applies only to certain enabling powers in the Bill under Clauses 7(1), 8 or 9, but changes could be made—for example, under Clause 17(1)—without the need for any explanatory statement under the schedule. Amendments 83A and 83E address these shortcomings by requiring a Minister, when laying secondary legislation before Parliament under any enabling provision in the Act, to make a statement that it does not remove or diminish any protection provided by equality legislation.
I will address the Government’s concerns in response to these amendments when they were debated in Committee. The Government suggested that requiring a statement that a new provision does not diminish protection may not be straightforward; for example, where protection for one group may conflict with that for another, raising complex issues. However, this just serves to highlight a point of central importance; namely, that delegated powers under the Bill should not be used to address such complex policy issues, which should be a matter for primary legislation and full parliamentary debate.
Furthermore, the amendment requires a Minister only to make a statement that they are satisfied that it does not remove any protection provided by equality legislation. This subjective statement does no more than place the Government’s existing political commitment in the Bill. Despite the Government’s assertion in an earlier debate that,
“the language of a political commitment does not translate to the statute book”,—[Official Report, 23/4/18; cols. 1461-62.]
I suggest that a Minister should have no difficulty in certifying that a technical provision of the kind that delegated powers are intended to be used for does not diminish protections in equality legislation. Indeed, the Government’s paper Equalities Legislation and EU Exit confirms:
“No planned changes to the Equality Acts 2006 and 2010 or secondary legislation under those Acts, using the powers under the EU (Withdrawal) Bill will substantively affect the statutory protections provided for by that equality legislation”.
A number of other amendments which would restrict the use of delegated powers to change equality and human rights legislation were debated in Committee. Some of these were criticised by the Government on the grounds that they would not permit technical changes, such as changing references from “EU law” to “retained EU law”, which would need to be made to equalities legislation. However, Amendments 83A and 83E do not prevent such changes. There would be no difficulty in the Minister making the required statement
that technical changes do not remove or diminish protections. Given that the Government are satisfied that this is the case, it is difficult to understand why they would object to the amendment.
The Government also suggested that the requirement to make explanatory statements should not be extended to all the powers in the Bill because,
“These other powers will not be making the sorts of changes to which these statements are applicable”.—[Official Report, 21/3/18; col. 265.]
However, as your Lordships’ Constitution Committee has said of one of the powers under Clause 17(1):
“There are minimal restrictions on its use and the wide range of purposes for which it might be used are not clearly foreseeable … We recommend that the power to make ‘consequential provisions’ in clause 17 is removed”.
Therefore, if such a power is to be retained, it is important that it should be subject to the greatest possible scrutiny, including the requirement for an explanatory statement under paragraph 22 of Schedule 7.
I welcome the decision of the House on 18 April to pass Amendment 11, in the name of the noble Baroness, Lady Hayter of Kentish Town, which requires an enhanced scrutiny procedure if delegated powers are to be used to make changes in a number of areas of law, including equality rights and protections. Amendments 83A and 83E, to which I am speaking tonight, are complementary and further strengthen the safeguards established by Amendment 11 in relation to equalities legislation.
I also welcome Amendment 83C, which has been tabled by the Government and would requires a ministerial statement before laying a statutory instrument under Sections 7(1), 8 or 9 to explain why there are good reasons for doing so and why the provision made by the instrument is a reasonable course of action. However, Amendment 83C does not replace the need for Amendments 83A and 83E, which would 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, and to the recommendation of the Women and Equalities Select Committee that the Bill should explicitly commit,
“to maintaining the current levels of equalities protection”.
These amendments are needed now, more than ever, owing to the Government’s rejection of Amendment 30A, introduced by the noble and learned Lord, Lord Wallace of Tankerness, which I supported. That amendment would have included a principle of non-regression in relation to equality rights in the Bill. These rather more modest amendments also seek to ensure that the withdrawal of the UK from the EU does not diminish protections in equality legislation, by strengthening the terms of the ministerial statement required when exercising the delegated powers in the Bill. I remain concerned that delegated powers could be used to dilute the equality rights currently protected by EU law and, to prevent this, I commend Amendments 83A and 83E to the House.