#FaceHerFuture European Union (Withdrawal) Bill: House of Lords committee stage briefing

The briefing was originally published here

Introduction

This briefing is to support Peers during the passage of the EU (Withdrawal) Bill through the House of Lords committee stage. It covers our primary areas of concern:

  • Priority 1: The unconstitutional nature of the delegated powers: unnecessary powers have been awarded to the Executive which undermines our Parliamentary democracy.

  • Priority 2: Protecting equality and human rights legislation: we are particularly concerned that these powers may result in the regression of women’s rights.

  • Priority 3: Safeguarding employment rights: we are similarly concerned that the Bill puts our employment rights at risk, many of which disproportionately protect women.

  • Priority 4: Replicating violence against women and girls (VAWG) protections and sustaining EU funding: if we do not act now, victims of violence will lose vital services and legal protections.

  • Priority 5: Keeping pace with the EU: our parliamentary democracy will be undermined if parliamentarians do not have the information they need to keep pace with the EU if they choose to.

Some progress was made during the Bill’s passage through the House of Commons:

  • Priority 1: The Government accepted amendments tabled by Charles Walker MP, establishing a sifting committee (which now form part of schedule 7). The committee will decide whether proposed statutory instruments (SIs) should be subject to the negative or affirmative procedure.

  • Priority 2:

  • The Government tabled its own amendment after an intervention from Rt Hon Maria Miller MP (chair of the Women and Equalities Committee). The amendment requires Ministers to make a statement to Parliament on whether an SI amends or repeals any provision of equalities legislation and if it does, why. Ministers must also make a statement to the effect that they have had ‘due regard’ to the need to eliminate conduct prohibited by the Equality Act 2010 (this amendment is now schedule 7, part 3(22)).

  • The Government also published its plans for amending the Equality Acts 2010 and 2006.

  • The Government published a right by right analysis of the Charter with a view to demonstrating the Charter is unnecessary.

  • Priority 3: The Government published the employment statutory instruments they intend to introduce (which can be found here and here).

However, much more needs to be done to address our five primary areas of concern. We are seeking to work with Peers to amend the Bill during committee stage.

Scrutiny of delegated powers – clauses 7, 8, 9 and 17 and associated schedules

Under clause 7, 8, 9 and 17, Ministers have the power to amend or even repeal primary legislation, through regulations. The scrutiny procedures outlined for these regulations, even with the amendments already accepted by the Government, are not sufficiently robust and effective as they do not include the Lords, and the decisions of Parliament on the appropriate procedure are only advisory. This fundamentally undermines the principle of a parliamentary democracy, awarding unnecessarily broad powers to the executive without appropriate scrutiny procedures.

We would be grateful to Peers if they could support amendments which provide for a higher standard of parliamentary scrutiny. In particular, we support cross-party amendment 237 to schedule 7 laid by Lord Lisvane, Lord Tyler, Baroness Hayter of Kentish Town, and Lord Blencathra.

Protecting equality and human rights legislation

  • Restricting delegated powers – clauses 3, 7, 8, 9, 17 and associated schedules

We are particularly concerned that the powers in these clauses may be used to amend or repeal the Equality Acts 2010 and 2006, and other equality and human rights legislation. The prohibition of discrimination on the grounds of sex, our maternity rights, and the right to equal pay for work of equal value are enshrined in these laws. The powers therefore present a grave risk to the rights we hold dear.

This risk is unnecessary. DexEU have published their plans for amending the Equality Acts 2010 and 2006. If the Government know the changes they need to make, why not include this on the face of the Bill, rather than give such wide-ranging powers to Ministers?

We would be grateful to Peers if they could support amendments which safeguard equality and human rights legislation. We are particularly supportive of amendments that prevent amendment, repeal, or revocation of equality and human rights legislation using delegated powers under the Bill.

In particular, we support cross-party new clause 21 after Clause 3 laid by Baroness Hayter of Kentish Town, Lord Warner, Baroness Smith of Newnham, and Lord Kirkhope of Harrogate, to ensure that secondary legislation cannot limit the scope of, or weaken, employment or equality rights, amongst other rights and protections. We also support amendment 22, tabled by Baroness Kennedy of the Shaws, which would extend the scope of amendment 21 to include human rights protection.

Charter of Fundamental Rights – clause 5(4-5) and associated schedules

If we do not carry over the protections of the Charter, independent analysis from the Equality and Human Rights Commission (EHRC) found that we will see a grave dilution of our rights, despite the Government’s contention that we will not. This goes against the Bill’s stated aim of translating EU law into domestic law. The right to non-discrimination will be lost along with the powerful remedy the Charter provides – we cannot let this happen.

We would be grateful to Peers if they could support amendments that retain the Charter of Fundamental Rights in domestic law. In particular, we support cross-party amendment 34 to clause 5, and amendments 46 and 47 to schedule 1 laid by Lord Goldsmith, Baroness Ludford, Lord Kerslake, and Lord Bowness to this end.

EU case law – clause 6

As it stands, there is no clarity for the courts on what to do about EU case law. EU case law has, among other things, strengthened and extended maternity rights. We must ensure that courts take account of EU case law post-Brexit so we do not lose these essential rights.

We would be grateful to Peers if they could support amendments that ensure courts have regard to future EU case law when it is relevant to interpreting retained EU law. We support cross-party amendment 56 to clause 6 tabled by Lord Pannick, Lord Goldsmith, Lord Wallace of Tankerness, and Viscount Hailsham.

Safeguarding employment rights essential to protecting women at work – clauses 3, 7, 8, 9 and 17 and associated schedules

As with equality law (above), Ministers will also be able to amend and repeal all manner of employment rights legislation using the widely-drawn powers in the Bill. In December last year, the Prime Minister failed to rule out scrapping the Working Time Directive, the Agency Workers Directive, and the Pregnant Workers Directive. The right to leave to care for an ill child, maternity rights, and part-time worker rights are all at risk.

Again, it is unnecessary to leave employment rights vulnerable in this way – DexEU has published the employment law statutory instruments they intend to implement (the documents can be found here and here). Why not exclude employment law from the scope of delegated powers, and introduce a schedule listing the statutory instruments already planned and published?

We would be grateful to Peers if they could support amendments that safeguard employment legislation, in particular, maternity rights. We are particularly supportive of amendments that prevent amendment, repeal, or revocation of employment legislation using delegated powers under the Bill.

On wider employment rights, we urge Peers to support new clause 21 and amendment 22 cited above.

On maternity rights, we support the amendments to clauses 7, 8, and 9 laid by Baroness Drake, which ensure delegated powers can’t be used to weaken maternity, paternity, adoption, or parental rights, including the rights of pregnant or breastfeeding women.

 

Replicating VAWG protections and sustaining women’s services post-exit day

  • EPOs and other violence against women and girls (VAWG) protections

After exit day, women subject to violence could lose significant legal rights and protections. European Protection Orders (EPOs) which grant victims of violence equivalent protection against a perpetrator across the EU will no longer be available to UK citizens. The ability to share data on perpetrators, as well as a whole host of other measures aimed at tackling human trafficking, FGM, enforcing child maintenance orders, and the sexual exploitation of children are also at risk. Despite this, VAWG has not appeared in any of the Government’s Brexit-related policy papers – we must give women and girls the best possible chance of retaining these rights by pushing it up the EU negotiation agenda.

We would be grateful to Peers if they could support amendments that require the Government to report on progress made to replicate these cooperative mechanisms. We support the new clauses 222 and 223 after clause 9 laid by Baroness Kennedy of the Shaws with this intention. We also support amendment 99 to clause 7 laid by Baroness Kennedy of the Shaws which replicates the EPO framework on the part of the UK.

  • Funding

European Commission funding, through streams such as the DAPHNE fund, the Rights, Equality, and Citizenship (REC) Fund, and the ESF, supports a wide range of research and service delivery aimed at tackling violence against women and girls in the UK. Of 140 projects supported by the £364m REC programme since 2014, just over one third had a UK lead or partner.

In practical terms, VAWG and women’s services such as the Iranian and Kurdish Women’s Rights Organisation (IKWRO) are set to lose up to 40% of their funding due to the loss of EU funding. This comes at a time when refuge provision saw a 23% funding drop from 2010/11 to 2016/17. We cannot let vulnerable women be further disadvantaged. The Government must commit to sustaining this funding post-Brexit.

We would be grateful to Peers if they could support amendments that require Parliament to report on plans to sustain funding currently provided by the EU, received by VAWG and women’s services. We support new clause 224 after clause 9 laid by Baroness Kennedy of the Shaws with this intention.

Keeping pace with the EU (new clause after clause 5)

There is a huge danger that the UK may fall behind the EU on gender equality and women’s rights. The EU are already considering measures that would likely promote gender equality that the UK will miss out on, such as a Directive on work-life balance for parents and carers, which would provide for four months paid non-transferrable leave for fathers. We must ensure that parliamentarians are provided with the information necessary to keep pace with the EU if they so choose. This is necessary if the UK is to be the best place in the world to be a woman.

We would be grateful to Peers if they could support amendments that require Ministers to report to Parliament when there is a change to EU law on family friendly employment rights, gender equality, and the work-life balance of parents and carers, ensuring there is no reduction in gender equality or employment rights due to Brexit. We support the cross-party new clause 40 after Clause 5 laid by Baroness Lister of Burtersett, Baroness Altmann, and Baroness Burt of Solihull to this end.

Summary

We would be grateful to Peers if they could support the amendments listed during Bill committee, otherwise we risk:

  1. Unconstitutional and unnecessary powers being awarded to Ministers

  2. The regression of our equality and human rights, including the right to equal pay

  3. The erosion of our employment rights, including maternity rights

  4. The loss of protections against VAWG and funding for VAWG services

  5. The loss of the opportunity to be the best place in the world to be a woman.

Malene Bratlie