Baroness Young of Old Scone (Lab)
My Lords, I support Amendment 58. This comes down very simply to the fact that, as a result of the discussion we have heard today, the recitals and preambles either are brought across automatically—in which case, some of the statements made in the debate in the other place on this issue, which were quite lengthy and considerable, need to be re-examined, because my impression of those was that there was no guarantee of preambles and recitals being brought across—or they are not clearly brought across, in which case we need something in the Bill that does so. So I would be very grateful if the Minister would clarify, first of all, whether he believes the Government are convinced that they are already clearly brought across.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, first of all perhaps I may observe that, pursuant to Clause 3 of the Bill:
“Direct EU legislation, so far as operative immediately before exit day, forms part of domestic law on and after exit day”.
That brings over direct legislation, including recitals, as I believe a number of noble Lords have understood.
The Government’s position is that, as long as retained EU law remains as part of the UK statute book, it is essential that there is a common understanding of what the law means. Therefore, to maximise certainty, any question as to the meaning of retained EU law will be determined in the UK courts, in accordance with the CJEU’s case law as it exists immediately before the UK leaves the EU. That is set out in Clause 6(3). Any other starting point would lead to a change in the law and risk creating considerable uncertainty, if not confusion, on exit day.
However, we do not want to fossilise that case law. That is why, pursuant to Clauses 6(4) and 6(5) of the Bill, there is provision for the Supreme Court, and indeed for the High Court of Justiciary in Scotland, to depart from that situation when employing their own jurisprudence. The test would be that which they apply at the present time in departing from their domestic jurisprudence.
While it would be fair to say that the Constitution Committee has not always seen eye to eye with us on the Bill, on this particular issue it described the Government’s position as clear and sensible. Retained EU law will of course be modified after exit day by Parliament, and indeed by the devolved legislatures. It is right and sensible that it should no longer be interpreted in line with retained EU case law, following those modifications. But, in other cases, it may be appropriate that, even where there has been some modification, it should continue to be interpreted in that same way. What we have in mind is a situation in which a modification simply changes a reference, for example from an EU commission or agency to a UK public body, but leaves the substantive scheme of the retained EU law exactly as it was before. That is the purpose of Clause 6(6): to ensure that, where there is a modification that has no impact on the operation of the scheme, we should continue, pursuant to Clause 6(3), to amend in an appropriate fashion.
Amendment 57, which was moved by the noble Baroness, Lady Bowles, would remove the reference to unmodified law from Clause 6(3). But one effect of that would be to cast doubt on the operation of Clause 6(6) and the ability of modifications to retained EU law to displace the binding effect of pre-exit CJEU case law. That uncertainty, we suggest, should be avoided.
Can I come on to the issue of recitals?
Lord Goldsmith
I intervene on the Minister before he moves on to that topic. If the words that the noble Baroness’s amendment would remove—
“so far as that law is unmodified on or after exit day”—
remain in, would it still be the Government’s position that any part of an EU law can be interpreted in accordance with these principles, even if another part of that law has been modified? Could he explain precisely? Is it a question of looking at a law and saying that part of it has been modified, and therefore we no longer look at EU retained law to interpret what is left—or is it that, once it has been modified a bit, it means that it is no longer subject to that interpretative technique? It would be very helpful to have that clarification.
Lord Keen of Elie
I am not sure that I am entirely following the noble and learned Lord’s point. To express it this way, where after exit there is a modification to retained EU law but that modification does not go to the substance of the retained EU law, which would have to be addressed on a case-by-case basis, Clause 6(6) then allows for the continued interpretation of that retained EU law by reference to Clause 6(3), notwithstanding the relevant modification. That is why I sought to give the example of a modification that simply took out the reference to an EU agency and substituted a UK agency.
Lord Goldsmith
I hope that the noble and learned Lord and the Committee will permit me to intervene, because it is important to know how this is going to be interpreted. I do not see in these words anything about a proviso where the modification does or does not go to the substance of the directive. What my question had in mind was that, if you had a directive that has 10 provisions in it, for example, and if one of those was modified, or indeed nine of them, when it comes to the one provision that has not been modified, does one treat the proviso as applying or not applying? In other words, is that therefore modified retained EU law, which cannot be interpreted in accordance with retained case law?
Lord Keen of Elie
With respect, it could all be interpreted with reference to retained case law. Clause 6(6) says:
“Subsection (3) does not prevent the validity, meaning or effect of any retained EU law which has been modified on or after exit day from being decided as provided for in that subsection if doing so is consistent with the intention of the modifications”.
So the point is being made that, even where there has been modification post exit to retained EU law, you may still find yourself on a case-by-case basis deciding that you can construe that retained EU law, notwithstanding the modification, in accordance with Clause 6(3). If the noble and learned Lord wishes to discuss the matter in some detail later, I am quite happy to take him up on that.
Lord Goldsmith
That is why I did not stand up, because I think that it is better if we discuss it outside the Committee.
Lord Keen of Elie
So be it. And there was me thinking that I was being clear.
I shall touch on Amendments 58 and 59 as well as Amendment 60, which are really concerned with what is being brought over into retained EU law. I reiterate the point that I made earlier that, pursuant to Clause 3, we bring over into retained EU law all the recitals and other material in the EU regulations and directives for the purposes of interpretation and then application—a point made by my noble and learned friend Lord Mackay of Clashfern earlier. If I may say so, that is reinforced, although perhaps not quite as patently as some noble Lords would wish, by Clause 6(3), which refers to the requirement to address the matter in accordance with any retained case law and retained general principles of EU law. The retained case law includes a body of case law that is establishing and has established clearly the principle of interpretation by reference to the relevant recitals in the directives and regulations.
Indeed, as the noble and learned Lord, Lord Goldsmith, observed, when addressing the matter in the context of the ECJ, as it was, or the CJEU, one finds that these recitals sometimes play a very material part in the way in which they interpret and apply legislation that is drafted in a rather—if I may say so, without being pejorative—looser way than is perhaps the norm in domestic statutory provision.
Lord Cormack (Con)
My Lords, I wish to make two very brief points. First, I want to endorse entirely what my noble friend Lord Renfrew said. The points he made on the archaeological issues are of very great importance indeed, and it is crucial—I speak as a fellow of the Society of Antiquaries and a former vice-president of that body—that these points are taken into account.
My other point, in a slightly lighter vein—but still with serious intent—is to support my noble friend Lord Deben, who made a splendid speech. As he made it, I could not help but remember an Adjournment debate in the other place, over 30 years ago, when the late, great Reggie Bennett mentioned the problems that he had enjoying his favourite sport of swimming off the south coast. He said, “Mr Speaker, there are very few beaches onto which I can now go and swim. All I can do is go through the motions”. That just brings home, in a very simple but important way, that we owe a lot to directives that have come from Europe and been brought into our laws. My noble friend Lord Deben referred to that in his speech; he played a very important part in that regard. It is easy to bash directives—we have all done it; I have done it—but collectively, we owe a great deal to what has come out of Europe on the environment, and been sustained and endorsed in this country.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, the issue of environmental protection was widely debated during the Bill’s passage through the other place. Of course, it has now been widely debated, with great ability, by many noble Lords here. We have already had a thorough debate on the important topic of animal sentience and I am grateful to noble Lords for their amendments on that issue and on the wider issue of maintenance of EU environmental principles.
Although I welcome the sentiments behind these amendments—Amendments 66 and 108, in the name of the noble Baroness, Lady Jones; Amendments 112 and 113, in the name of the noble Lord, Lord Krebs; Amendment 67, in the name of the noble Lord, Lord Judd; and those in the names of the noble Lords, Lord Adonis and Lord Wigley, and the noble Baroness, Lady Miller of Chilthorne Domer—I believe them to be ultimately unnecessary, for reasons I will now set out.
As my noble friend Lady Byford indicated, on 11 January, the Prime Minister launched the 25-year environment plan. That sets out our determination to leave our environment in a better state than how we found it and outlines steps to achieve this. Launching the plan, the Prime Minister stated:
“Let me be very clear. Brexit will not mean a lowering of environmental standards”.
Of course, we are committed to internationally recognised environmental principles, as set out in the Rio Declaration on Environment and Development in 1992, known as the Rio principles. This declaration includes the ideas behind a number of the environmental principles listed in Amendment 66, including sustainable development, the precautionary principle, the polluter pays principle and access to environmental information. These, as well as other principles, are also features of multilateral environmental agreements to which the UK is a party. For example, the OSPAR Convention—the Convention for the Protection of the Marine Environment of the North-East Atlantic—and the Gothenburg Protocol on air pollution both apply the precautionary principle.
Although these principles are already central to government environmental policy, they are not set out in one place. That is why the Secretary of State for Environment, Food and Rural Affairs announced on 12 November our intention to create a new comprehensive policy statement setting out our environmental principles. The new policy statement will draw on current EU and international principles and will underpin all our future policy-making. The Secretary of State for Environment, Food and Rural Affairs also announced on 12 November our intention to consult on a new, independent and statutory body to advise and challenge government, and potentially other public bodies, on environmental legislation, stepping in when needed to hold these bodies to account and to be a champion for the environment.
In reply to the noble Lord, Lord Krebs, my noble friends Lady Byford and Lord Caithness and other noble Lords, this year we will consult widely on the details of the announcement from the Secretary of State for the Environment—I apologise to noble Lords that I cannot be more specific about a date at the moment. That consultation will explore the precise functions, the remit and powers of the new environmental body, and the nature, scope and content of the new statement on environmental principles. This will be the start of a detailed conversation with stakeholders. There are many stakeholders in this area and it is important to gather their views before coming to any decisions, which is why I cannot be more definitive at this stage on timescales.
Lord Krebs
My Lords, is the Minister familiar with Einstein’s theory of relativity? The reason I ask is because if you do the sums, I reckon that there is just over 12 months to go between now and the proposed date of exit from the European Union. We are talking about a three-month consultation period—starting heaven knows when, because we still do not know when the document for the consultation will be launched—then we have perhaps another nine months to pass an environment Bill through Parliament, if it is to be a statutory body, and then perhaps another six months to set up the organisation, fund it and appoint the staff. That sounds like a minimum of 18 months to go into 12. But of course, as Einstein pointed out, if you can travel at a speed faster than 186,000 miles per second, you can stretch time, so I hope that the Minister is proposing to invoke Einstein’s theory of relativity in ensuring that the body will be in place by the proposed date of exit.
Lord Callanan
I will take that as an observation rather than a question.
Amendments 66 and 67 would prejudge the outcome of the forthcoming consultation by setting requirements in legislation now. The result could be that we need to amend the legislation after we have considered this important input from stakeholders. I will say a few words in response to my noble friend Lord Deben’s points in a second. I am disappointed that he thinks that I am sometimes a little sharp with him; obviously, we do not often agree on many things, but I hope that I am as transparent as I can be with him.
Amendment 66 also goes further than the existing principles set out in EU and UK law today. In particular, it would introduce a new power for courts to declare provisions in primary or secondary legislation to be incompatible with the environmental principles. This power does not currently exist in either EU or UK law.
I will go a little further. The precautionary principle is included in, for instance, the REACH regulation and the invasive species regulation, so it will be preserved by the Bill in those areas. Similarly, the polluter pays principle, referred to by a number of noble Lords, is referred to in the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017, which will also be preserved by the Bill. EU case law on chemicals, waste and habitats, for example, includes judgments on the application of the precautionary principle to those areas, which will, likewise, be preserved by the Bill.
The purpose of the Bill is to convert and preserve the law so that after exit it continues to operate as intended. This includes many of the directives referred to, such as the wild birds and habitats directives, as transposed through domestic legislation. It is not appropriate for the Bill to introduce new powers of this kind.
Lord Deben
My noble friend has explained that some things are already there. Can he give me an undertaking that if we were in consultation to remove from this amendment anything that is additional to where the European Union now is, he would accept this amendment? That is the issue. If we were to do that, would he accept the amendment?
Lord Callanan
I cannot give an assurance that we would do that. This is about legal certainty—taking a snapshot of existing laws and transferring them into UK law as it is. It is not about creating new powers within the Bill. There will be a further opportunity to discuss this when we publish our proposals for the new body.
Lord Deben
I have not said “new powers” or talked about creating legal certainty. He keeps using that phrase. I merely said that if we amend this so that there is no additionality to what is already in European law, will he accept that as an amendment?
Lord Callanan
If a new amendment is put forward, of course we will look at it and consider its legal implications. I can give that assurance.
On Amendment 112, our starting point is that the new statement of principles and the environmental body should cover England and environmental matters that are not devolved. To respond to the point made by the noble Lord, Lord Wigley, if the devolved Administrations would also like to take action on these issues, we are open to co-designing the proposals to ensure they work more widely across the UK. We would need to take account of the different government and legal systems in the home nations, as well as the different circumstances in the different parts of the UK. This amendment risks compromising consideration of these important issues as well as the wider devolution settlement by requiring the UK Government and devolved Administrations to consult jointly on UK-wide proposals for governance and principles.
On Amendment 113, the secondary legislation made using the powers under Clause 7 will be subject to parliamentary oversight, using well-established procedures. This amendment would require us to make all the regulations within one month of Royal Assent. This would not allow time for stakeholder consultation and would also not allow sufficient time to make all the SIs—noting that affirmative SIs take longer than one month to be laid and made.
Many areas of environmental policy are devolved. This amendment would require the Secretary of State to make regulations for all the UK, which would be contrary to the devolution settlement. It would also require the creation and maintenance of a register of functions indicating who is responsible to perform them before leaving the EU and who will be responsible after we leave the EU. This is a bit of bureaucratic procedure that has no added value. The SIs under the Bill will set which UK body will perform functions, such as the various regulatory functions.
On Amendment 108, the UK Government laid legislation transposing the national emission ceilings directive in Parliament on 1 February 2018, demonstrating our clear commitment to improving air quality. This legislation implements ambitious, binding emission reduction commitments for 2020 and 2030 into domestic law. Air quality has improved significantly over recent decades, with the UK reducing emissions of all the major five air pollutants. For example, since 1970 we have reduced emissions of nitrogen oxides by 69%, emissions of PM10 by 73%, and emissions of PM2.5 by 76%. Emissions will continue to reduce thanks to the action we have already taken, and we will publish a new clean air strategy in 2018 setting out how we will work towards our 2020 and 2030 commitments.
The Bill will ensure that the body of existing EU environmental law continues to have effect in UK law. It will be for Parliament—and, in some cases, for the devolved legislatures—to make any future changes in legislation after we have left the EU. The power under Clause 7 will be used to amend legislation to ensure continued operation of legislation, enabling the Government to continue to meet their environmental objectives.
Amendment 186, tabled by the noble Lord, Lord Adonis, and to which the noble Baroness, Lady Brown, spoke, would compel the Government to set out a strategy on the EU emissions trading system. This amendment is unnecessary given that our Clean Growth Strategy, published last year, clearly sets out our guiding principles on reducing emissions. We are considering the UK’s future participation in the EU ETS after our exit. We remain firmly committed to carbon pricing as an emissions reduction tool, while ensuring that energy-intensive and trade-intensive businesses are appropriately protected from any detrimental impacts on competitiveness.
Lord Adonis
The Minister said that the Government are “considering”; does that mean that they might propose to continue our membership?
Lord Callanan
This is a matter for the negotiations but it is certainly one of the factors we are considering. We will seek to ensure that our future approach is at least as ambitious as the current arrangements. Furthermore, we have set ambitious emissions reduction targets framed by the Climate Change Act 2008; leaving the EU does not change that.
As I have said, the purpose of the Bill is to ensure continuity and clarity in our laws without prejudice to the ongoing negotiations with the EU. I do not believe this amendment would help to achieve that, and I hope noble Lords will not press it.
I shall say a word on Amendment 260, also tabled by the noble Lord, Lord Adonis, which seeks to restrict the use of the Clause 17 power to weaken environmental protection. I reassure the noble Lord of the Government’s commitment to maintaining our strong environmental protection as we leave the EU. As such, it is essential that we ensure that the legislation which protects the environment remains coherent and tidy, so that it continues to function effectively after our exit.
While the noble Lord’s amendment is well intentioned, we cannot accept it. This is because it would restrict the Government’s ability to ensure that the consequences of the Bill—most notably the repeal of the ECA—were reflected throughout the statute book. It would also restrict the Government’s ability to bring to an end tidily the law and procedures that the Bill repeals. This is a vital part of providing businesses and individuals with the continuity and clarity needed for when the UK leaves the EU.
I want to make clear that these powers may be used only in consequence of, or in connection with, the coming into force of a provision of the Bill itself, not our withdrawal from the EU. Any changes made to environmental legislation to deal with the consequences of provisions of the Bill will be purely to ensure that the changes caused by this Bill are properly reflected in the statute book. To continue to work effectively and appropriately, the statute book must be tidy. It would not be proper, for example, that once the Act has been repealed, there are still references to the ECA lingering in a ghostly way across the statute book. This does not include adjusting important environmental legislation where—although I cannot imagine how this would diminish environmental protection—there must be no uncertainty as to whether the Government can make these statutes clear and up to date, ensuring their effectiveness by reflecting the consequences of this Act.
Case law and an array of legal authorities provide a very narrow scope for Governments to exercise powers of this type. As such, they cannot be used to make bigger, more substantive changes to equalities, human rights or environmental legislation; if needed, these will likely arise from our withdrawal from the EU and not from the effects of this Bill. They would therefore be made using the Clause 7(1) power where there is a deficiency arising from withdrawal. In this way, both minor technical amendments and more substantial amendments will be subject to appropriate scrutiny procedures. I hope the noble Lord is satisfied that the Government remain committed to maintaining environmental protections throughout the process of leaving the EU, and that this will enable him not to press this amendment.
I turn to Amendment 317, tabled by the noble Lord, Lord Wigley, which proposes a new clause in relation to common frameworks for environmental protection. As noble Lords will agree, protection of the environment is a key concern and I am grateful to him for raising this important issue. Common approaches are being considered in a number of areas, which will help to provide the necessary environmental protections. While the UK Government and the devolved Administrations sometimes make different choices on implementation of some policies, these common rules provide significant benefits, such as making it simple for businesses from different parts of the UK to trade with each other and enabling us to meet our international obligations and, therefore, protect our common resources. This is pertinent to the environmental commitments and protections that he rightly raised.
The proposed new clause would require the Government to publish consultation proposals for the replacement of European frameworks with UK ones. It is not the position of the UK Government, nor of the devolved Administrations, that the existing EU frameworks will be replaced by our own common frameworks in every instance. Noble Lords will be aware that the Government have been working closely with the devolved Administrations to determine where future frameworks—legislative or non-legislative—will be required when the UK leaves the EU. We are making good progress in constructive discussions, which continue to be guided by the principles agreed at the Joint Ministerial Committee on European negotiations in October 2017.
We hope, of course, to make further significant progress over the coming weeks and months. However, I recognise the importance that this is not just a conversation between Governments. The increased scrutiny and input of Parliament, the devolved legislatures and wider stakeholders are therefore welcomed as discussions on these issues move into a greater level of detail. As we move forward, this wider engagement will include stakeholders interested in the environmental issues that the noble Lord has raised. I therefore hope my reassurances will enable him not to press his amendment.
Finally, I turn to Amendment 67A, tabled by the noble Baroness, Lady Miller. I agree that it is vital to continue to support our fantastic farmers and growers as we leave the EU. The Government are determined to grow more, sell more and export more of our great British food and drink. Indeed, such exports reached a record level of £22 billion in 2017. On 27 February, the Government launched a formal public consultation, inviting views on a range of possible paths to a brighter future for farming. Health and Harmony: The Future of Food, Farming and the Environment in a Green Brexit describes how, in future, money can be redirected from direct payments under the common agricultural policy—which are purely based on the amount of land farmed—to a new, more appropriate system of paying farmers public money for public goods such as, principally, their work to enhance the environment and invest in sustainable food production. Other public goods which could be supported include investments in technology and in skills to improve productivity.
The consultation seeks views on the huge opportunities that exist for UK agriculture to improve its competitiveness: developing the next generation of food and farming technology, adopting the latest agronomic techniques, reducing the impact of pests and diseases, investing in skills and equipment and collaborating with other farmers and processors. It also discusses the introduction of an agriculture Bill that breaks from the common agricultural policy, providing the UK with the ability to set out a domestic policy that will stand the test of time. This could provide legislative powers, including measures to create new schemes to promote and increase agricultural productivity and resilience.
The Government are vigorously pursuing the measures needed to create a strong, profitable and sustainable future for food producers in this country. Our plans will be strongly influenced by information and evidence from the very many stakeholders in the industry. I hope my reassurances will enable the noble Baroness not to press her amendment.
Baroness Crawley (Lab)
We understand that consultation has yet to start on this new watchdog—that is, on the type of watchdog that we want in the future. However, perhaps the Minister would give us a clue as to what the Government would like to see as far as powers for this watchdog are concerned. For example, would they like the new watchdog to have the same sanctioning powers on Governments that the European Commission has at the moment, to which my noble friend Lord Rooker referred?
Lord Callanan
I thank the noble Baroness for her interest in this. I am sure she will understand that I cannot go any further at the moment. We hope to launch the paper shortly, but all these matters—what powers it will have, et cetera—will be a matter for the consultation.
Lord Hannay of Chiswick (CB)
The noble Lord has given us a trailer on the consultation for the new agricultural system. Will he tell us which of the elements that he has referred to could not be introduced under the common agricultural policy as it is currently practised?
Lord Callanan
As the noble Lord is aware, I said that the common agricultural policy is based on land-based production subsidies, whereas we can now move to other, different policies instead. This is one of the benefits of Brexit; the common agricultural policy has been one of the worst things the European Union is responsible for.
Lord Wigley
On that very point, if there is going to be a new, overarching agricultural Bill, will the Minister confirm that this would be applicable only to England, since agriculture is totally devolved to the three other nations?
Lord Callanan
Yes, I believe Scotland, Wales and Northern Ireland will be able to pursue their own policies in this regard—which is another benefit of Brexit.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
The noble and learned Lord, Lord Wallace, will have the opportunity to respond to the question posed by my noble and learned friend Lord Mackay after I have set out the Government’s position.
I thank noble Lords for this brief debate on this extremely important subject. Amendment 70A, tabled by the noble and learned Lord, Lord Wallace of Tankerness, seeks to ensure a firm basis for equalities protections as we leave the EU. In that sense, and in response to the noble Baroness, Lady Hayter, I of course understand and sympathise with the motivation behind the amendment and recognise the noble and learned Lord’s interest, shared by many others on all sides of the Committee. Indeed, the noble Lord, Lord Adonis, tabled Amendments 101A, 133A, 161 and 259 —I thank him for his brevity in not addressing them—which seek to restrict the powers in Clause 7 from making any changes to equalities and human rights legislation.
However, as I will endeavour to set out for the benefit of the Committee, we believe that these amendments are unnecessary given our commitment to maintaining existing equality and human rights legislation and, more widely, to sustaining our strong track record in this area. Amendment 70A would in fact give rise to significant new rights—which is not, of course, the purpose of the Bill—and in all likelihood would raise difficult questions, as my noble and learned friend Lord Mackay indicated, regarding legal certainty.
The Government have already made clear our commitment that all the protections in and under the Equality Acts 2006 and 2010 and equivalent legislation in Northern Ireland will continue to apply once the UK has left the EU. This has been stated unequivocally on several occasions, including in the March 2017 White Paper that preceded the Bill, the equality analysis we published in July 2017, and in the government response of October 2017 to the Women and Equalities Select Committee’s report, Ensuring Strong Equalities Legislation after the EU Exit.
As further assurance, the Government tabled an amendment in the other place—now paragraph 22 of Schedule 7—that will secure transparency in this area by requiring ministerial statements to be made about amendments made to the Equality Acts under each piece of secondary legislation under key powers in the Bill. These statements will in effect flag up any amendment to the Equality Acts and secondary legislation made under those Acts, while also ensuring that Ministers confirm that, in developing their draft legislation, they have had due regard to the need to eliminate discrimination and other conduct prohibited under the 2010 Act. We further confirmed in the other place that similar statements will be made in relation to other Brexit Bills. So we have clearly shown our commitment to maintaining the protections in our existing equality legislation, and ensuring that Brexit will not see the UK somehow regressing in this area. In contrast, Amendment 70A would go much further by creating new freestanding rights which would, indeed, apply in circumstances where the Charter of Fundamental Rights does not. Let me take a few moments to explain this in a little more detail.
First, subsection (3) of the new clause proposed by Amendment 70A takes an element from the Charter of Fundamental Rights, strips it of its original context and creates from it an exceptionally wide-ranging anti-discrimination duty. The effect of this is to go well beyond the requirements of the equivalent charter rights, which, as has been said, apply to member states only when they are acting within the scope of EU law, and well beyond the requirements of current domestic law. It would, for instance, introduce a legal duty on public bodies not to discriminate on grounds of language, property, birth or political opinion. That may sound reasonable on the face of it, but if we consider language for a moment, this duty could, for example, give all non-English speaking users of government services a right to claim discrimination if any of those services is available only in English and not in their own first language. This could ultimately mean that all public services would have to be provided in a very wide array of languages, at a substantial and disproportionate cost, which perhaps would even make some discretionary services unviable.
As many noble Lords will be aware, the key wording of subsection (3) of the new clause proposed by Amendment 70A originates in Article 14 of the European Convention on Human Rights. Again, I want to be very clear on this point: nothing in the Bill affects the Government’s ongoing commitment to the ECHR, which is, of course, given further effect in domestic law by the Human Rights Act 1998. Against this backdrop of clear commitments to the European Convention and to maintaining all the protections in and under the Equality Acts, I respectfully suggest that the concern expressed about the future of equality rights after we leave the EU and the assumption that new freestanding anti-discrimination rights are in some way needed to offset the impact of our exit is misplaced.
The Equality Act 2010 is the cornerstone of our equalities legislation. It covers all the requirements of the four existing EU equality directives but also goes much further. For example, our ground-breaking gender pay gap reporting requirements and our public sector equality duty have no equivalent in EU law. Also, there is no existing EU directive that prohibits, as our Equality Act does, discrimination by providers of goods or services because of age, disability, religion or belief and sexual orientation. We are proud of the UK’s track record on equalities and we do not need to be part of the EU to sustain that excellent record.
Subsection (2) of the new clause proposed by Amendment 70A seeks to establish a legal provision that everyone is equal before the law. However, that very principle is already reflected in the rule of law in the UK and is one of the longest-established fundamental principles of the UK’s constitution. The common law requires public authorities to act reasonably when exercising their powers, and this includes a requirement not to discriminate arbitrarily between different cases.
Finally, subsection (4) of the clause proposed by Amendment 70A would, albeit without directly amending the Human Rights Act 1998, have the effect of linking the new rights created by subsections (2) and (3) to the framework of key provisions in the 1998 Act. Again, with respect, I must say that I do not think that this is appropriate. We believe that it would create legal uncertainty and confusion, not least around the existing prohibition on discrimination under Article 14 of the ECHR, as set out in the Human Rights Act 1998. 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. It is not intended to be a vehicle for substantive legislative changes such as those proposed and so we cannot accept Amendment 70A, and I hope that the noble Lord feels able to withdraw it.
It is also to this end that, while we agree with and understand the honourable intentions behind the amendments of the noble Lord, Lord Adonis, we cannot accept them as the legislation that underpins these rights and protections will contain many provisions that will become deficient after our exit. Indeed, the response that the Government put out in October 2017 highlighted some of these deficiencies. For example, the Equality Act refers in several places to EU or to Community law. These references are likely to need to be replaced with the term, “retained EU law”. As such, we believe that it is essential that the Clause 7 power is able to address these deficiencies so that we can ensure that the legislation that safeguards these rights and protections can continue to function effectively—which is what I would have thought we all wanted to see. Without this ability, businesses and individuals may be vulnerable to the resultant gaps in the law, which would be counterintuitive to the intentions of the noble Lord.
Equally, it cannot be the intention of the noble Lord to prevent the Government remedying a breach of our existing international obligations using Clause 8. Both these clauses are subject to the same restrictions on amending the Human Rights Act and the same equalities transparency requirements. In relation to Clause 9, to which Amendment 161, also in the name of the noble Lord, Lord Adonis, refers, one of our clearest similarities with the EU is our shared historic belief in the values of peace, democracy, human rights and the rule of law. It is extremely difficult therefore to envisage that any withdrawal agreement we negotiate with the EU, and by extension the Clause 9 power to implement parts of that agreement, will somehow undermine human rights and equalities law. Rather perversely, Amendment 161 would actually prevent Clause 9 strengthening human rights or equality law on the basis of something agreed in the withdrawal agreement with that effect.
However, as I have already set out, Clause 9 is, like Clause 7(1) and Clause 8, explicitly prohibited from being used to amend, repeal or revoke the Human Rights Act or any subordinate legislation made under it. In the case of Clause 17, I reassure the Committee that these powers may be used only in consequence of, or in connection with, the coming into force of a provision of the Bill itself. We expect that any changes made to equalities or human rights legislation to deal with the provisions of the Bill will be to ensure that the changes caused by the Bill are properly reflected in the statute book and that there is smooth transition in the law. To continue to work effectively and appropriately, the statute book must be tidy. Case law and other legal authorities provide a narrow scope for Governments to exercise consequential and transitional powers of this type. As such, they cannot be used to make truly substantive changes to equalities or human rights legislation.
I hope that what I have been able to say has satisfied noble Lords that the Government remain committed to maintaining equalities and human rights protections throughout the process of leaving the EU and I hope that that will enable the noble Lord to withdraw the amendment.
Lord Cashman
Before the Minister sits down, I asked him a direct question about the sifting committee and whether the recommendations had to be accepted by the Minister. Perhaps he could address that question.
Lord Callanan
I think my noble friend the Leader will be setting out our proposals for the sifting committee in this House. I have not seen the details, but my understanding is that there will be recommendations to the Minister.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who took part in this debate and I thank the Minister for his reply. He will perhaps not be surprised to learn that I was not wholly satisfied with his reply—although in fairness there was some common ground. He, like me, referred to the White Paper of March 2017 and the commitments that the Government made. Indeed, I accepted and acknowledged that in many cases the rights that have been established in relation to equality in this country have sometimes exceeded those in the European Union. However, that somewhat misses the point, because what I sought to do with this amendment was to ensure that, as we go forward and leave the European Union, these rights will still be there and that no future Government will be able to row back on them without having to give a proper explanation to Parliament.
The Minister made a couple of other points and I will reflect on what he said. I wonder about making the same offer as the noble Lord, Lord Deben, made in the previous debate: if he thinks that some of these go too far, if he and I were to meet and he were to excise the ones he thinks take it beyond what is already there, would he then be prepared to accept an amendment on Report without these? That might be something he would wish to consider.
I also note that while he made the point in relation to subsection (2):
“All individuals are equal before the law”,
as I did in my remarks, that that is part and parcel of our common law, he did not have anything to say about the second part, which refers to having,
“the right to the equal protection and benefit of the law”.
The noble Baroness, Lady Lister, very graphically described the recent case which shows that treating everyone equally before the law does not take account of the fact that some laws might impact disproportionately on some categories of people and end up in discrimination.