Draft Equality Act 2010 (Amendment) Regulations 2023

Debate between William Cash and Stuart C McDonald

Wednesday 6th December 2023 General Committees

[Sir William Cash]

I hope that everyone in this Committee, and indeed in this House, wants to protect women. That is a very important principle as expressed, for example, in my International Development (Gender Equality) Act 2014. On the question of the charter of fundamental rights, that has now been excised from our statute book by clear and explicit words. That is the issue that I want to address and that my Committee, the European Scrutiny Committee, is examining at the moment in a series of evidence sessions.

I listened with great interest to my hon. Friend the Member for Penistone and Stocksbridge because there is a lot of law in here that I will not regale the Committee with today. I think there is time enough for that. The bottom line is that in the Supreme Court judgment last month, which by any standards was an important judgment, the case of ASM was dismissed. It did not receive much attention, but that is what happened. The Court concluded that the statutory repeal under the Retained EU Law (Revocation and Reform) Act 2023 had the effect that provisions relating to his case had been, by clear and explicit words, effectively removed, so his case had to fall and was dismissed. That is very important indeed. It was reflected by what Lord Jonathan Sumption said on the “Today” programme only a couple of hours ago: he said that if the words are explicit and clear in the case of a repeal of, in this instance, retained EU law, the courts will of course carry out the instructions of Parliament where the intention is clear, unambiguous and explicit. That is the crucial test.

The question in this instance is whether that test is something that needs to be taken into account at the time the decision is taken on the Floor of the House. The procedure of the House can be a little opaque. It can be that we end up without having a full debate on the subject. I heard what my hon. Friend the Member for Penistone and Stocksbridge said—that there are questions still in the mind of the Government over this. In that event, I would suggest that the most appropriate approach in this instance would be to make sure that there is adequate time for consideration. In other words, we should not have a rushed decision on the Floor of the House about these regulations.

It is still open to the Government because, as you rightly said when I made my point of order, Mr Hollobone, this is a matter for the Committee to consider, rather than decide on. We want to be sure that when the decision is taken, account can be taken of, for example, what the European Scrutiny Committee may want to say about this. We will obviously look at it, because it has evoked a lot of interest and some concern. Rather than repeat what my hon. Friend the Member for Penistone and Stocksbridge has said, the best thing I can say is that my objective in being here today, while I obviously do not have the right to vote, is to take this opportunity to speak—for which I am extremely grateful to you, Mr Hollobone.

The subject matter is important, and there are principles here of great significance. There are questions of interpretation by the courts that could be taken at a later date. We want to be crystal clear that if serious objections have been and can be raised—and will be—as we proceed and as the situation evolves, the House can come to the right conclusion as to what interpretation will be placed on this provision.

[Stuart C. McDonald]

Is not the problem we now face as a Parliament that we have this deadline of the end of the year to get this sorted, and it is precisely because of that that we are left with pretty much no choice but to take what the Government deliver to us, or else lots of these employment protections will fall away?

[Sir William Cash]

The hon. Gentleman is super courteous, and he has put his finger on it, I have to say. In informal discussions with members of Government I have raised that I am concerned about the fact that this list of legislation has not yet been finalised. Some Members may recall that I took part in the ping-pong on this subject. The Government accepted an amendment that I put forward, which has also been put forward in principle in the House of Lords to ensure that the list accurately reflects what we want to remove and what we do not.

That is something the hon. Gentleman quite rightly points to; we have had to wait an awfully long time for this list to appear. If it does appear, it seems to me that there are grounds for including this provision as one that should be revoked rather than allowed to go through by way of adaptation. I will not offer more thoughts on that for the purposes of this Committee.

I would just like to put on the record that a lot more consideration could usefully be done. We are not asking for an adjournment of this Committee or anything like that, but we would like the opportunity to deal with the issue properly and fully and for the Government’s reappraisal of the position—if it is thought to be appropriate—to take place as the result of proceedings in the House. This is a very good example of the way in which this House operates compared to some foreign jurisdictions, where these matters are not properly looked into. It is tribute, if I may say, to the manner in which we conduct our procedures that these opportunities can be provided to clarify things and make sure we do not make any serious mistakes.