EDF Draft Template Letter

EDF Draft Template Letter

Dear

European Reform Bill (The Bill) – Comments and Perspectives from NGOs

Many charities, NGO’s and other organisations like ourselves at (Insert name e.g. EDF) are deeply concerned about the European Withdrawal Bill (The Bill).

(insert brief description of organisation e.g. EDF).

We understand the need for new legislationnecessary for the UK to leave the EUand disentangleits 50 years relationship with the legal structures of the EU,so we can function effectively outside of it. We particularly welcome the Government’s commitment to ensure that the same laws and rules apply after the UK is no longer a member of the EU as before it leaves. Mention has also been made that general rights should be protected and maintained and that there should be no regression in the rights of workers which we are also pleased to hear.

In the UK we have a long and strong tradition of protection of equality and human rights which we can all be proud of. It is important that this is at the fore front of all our thinking in planning and preparing to leave the EU. It is disappointing to NGOs that opportunities are not being taken to translate Government policy intentions into explicit legislative commitments. It is ourbelief that commitments in themselves, however laudable, will not guarantee the protection of equality rights. Steps must be taken to embed equality into domestic law to ensureequality protections are maintained in the future. In our view this is an imperative for a number of reasons, most importantly the retention of fundamental rights protections, and that we do not regress whilst we continue to drive forward improving equality in the UK and to be the best.

The steps we recommend would entrench equality into the UK legal and policy framework and would ensure we retain a strong, undiminished record of equality after we leave the EU.

Our aim is to work with the Government to:

• Promote a vision for a modern outward-looking and high standards Britain after we leave the EU where we can build on current rights to equality, respect and inclusion;
• Protect our current equality and human rights protections and ensure there can be no process for them to be changed without appropriate parliamentary scrutiny and involvement of citizens and civil society;
• Ensure that all future legislation embeds rights to equality on a constitutional basis.

Equality rights that may be at risk include those inferred by the treaties, or by legislation under the treaties, or by European Courts of Justice rulings interpreting the treaties and legislation.

As it is currently the drafted the Bill aims to achieve three things:

Repeal the 1972 European Communities Act which provides the legal authority for EU law to have effect in UK law.

Transpose EU laws in to UK law – this will ensure EU law made while UK is a member will continue to apply after exit.

Grant ministers the power to change transposed EU-law using secondary legislation which is subject to less scrutiny by MPs and Parliament.

Our primary concerns are:

Constitutional Right to Equality

Currently the constitutional right to equality sits within Europe so our domestic law cannot fall below the standard of EU law. This is an important guarantee of minimum levels for equality rights. It has been used to enable workers to claim equal pay for work of equal value and to ensure that pregnant workers’ rights are protected. On leaving the EU this additional layer of protection of rights and freedoms will be lost

The Bill presents an opportunity for Parliament to turn this loss into an opportunity to cement our commitment to being a world leader on equality by creating a constitutional right to equality. This would provide certainty and predictability in the future and could be achieved by including a free standing right to non-discrimination within the Bill. This would have the same constitutional status as rights protected under the Human Rights Act and would be enforceable in the same way. Laws and state actions would be tested against the right to equality and non-discrimination and the requirement for new laws to be compatible with the constitutional right to equality also.

Removal of the Charter of Fundamental Rights

The lack of a commitment expressed in the bill to retaining all the EU derived rights and protections in full gives cause for concern in regard to the removal of the Charter of Fundamental Rights of the EU. The Charter forms the basis of how EU law should be applied and will cease to apply after exit day.The removal of the charter in our view will diminish UK law. It is our belief that a review of the full implications of removing the Charter and the rights of citizens it has helped to guarantee from UK Lawis required. As is stands some of the rights relating to children as well as other free standing non -discrimination provision will no longer have the same protection in the UK at a constitutional level.

We understand the Government’s position that many of the rights contained in the Charter also are contained in other UN treaties the Government has ratified, but our concern is the UK has not incorporated these treaties into UK law, and they therefore do not have a direct effect in the UK and so do not provide equivalent protection to that contained in the Charter. We strongly believe that the Charter of Fundamental Rights should continue to apply domestically in the interpretation and application of retained EU law.

Use of Delegated Powers

The Bill grants ministers the power to change laws through secondary legislation to address uncertainties and deficiencies in the repatriation of EU existing legislation into UK domestic legislation.As currently drafted these powers can be exercised without scrutiny making it possible for regulations, powers and rights currently enjoyed to be signed away.The proposed Bill allows for the possibility of vast areas of law being changed without full parliamentary process. This poses a genuine risk that rights and freedoms enjoyed by British citizens will be lost. The Government’s stated intention to retain current protections is very much welcome. However this needs to be stated expressly in the Billfor future predictability and stability.

The Bill contains wide regulation making powers which can be used when the Minister considers it appropriate to:

‘prevent, remedy or mitigate –

a) failure of retained EU law to operate effectively, or

b)Any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU’.

Regulations, or statutory instruments, are made with the approval of Parliament but they do not have to go through the same rigorous scrutiny by Parliament before they come into effect. It is clear that with the quantity of legislative changes that will have to be implemented within a relatively short period, statutory instruments will need to be used extensively. The Government has made clear these would be used ‘to deal with deficiencies’ for instance around harmonisation issues or minor matters such as a change of name. These are suitable for the use of delegated powers. However, in our view the potential for the use of delegated powers which could have far-reaching effects without a high level of scrutiny is a real and unnecessary risk.

There are three main procedures used in order to approve regulations depending on the amount of scrutiny by Parliament thought to be needed: the negative procedure, affirmative procedure, or the super-affirmative procedure.

• The negative procedure – regulations subject to this procedure become law on a stated date unless a motion is passed in either House annulling the instrument. A request for such a motion must be made within 40 days of the regulation being laid in Parliament. The vast majority of regulations are made using this procedure.
• The affirmative procedure - requires a positive vote in each House to approve the regulation as a whole.
• The super-affirmative procedure which is more rigorous and the procedure for these is set out in the relevant Act itself.

The Bill provides that most regulations will be subject to the negative procedure (in six limited situations the affirmative procedure will apply).

Statutory Instruments, with just a few exceptions, cannot be amended by Parliament. This is because it is thought to undermine the principle of delegation of power to Ministers.Both Houses of Parliament are therefore confronted with an unpalatable ‘take it or leave it’ choice to accept a Statutory Instrument even if they believe it is fundamentally flawed, or reject it entirely even if some elements are acceptable. In practice, very few Statutory Instruments are ever rejected.

We welcome the Governments stated intention to retain current protections. In practice however, the wide regulation-making powers contained in the Bill mean that future administrations could use these ‘take it or leave it’ Statutory Instrument processes to undo or weaken current protections. Exempting equality and human rights from the use of delegated powers is the simplest way of ensuring this cannot happen.

It is our view that to ensure a transparent and a credible democratic process the concept of using delegated powers should be explicitly ruled out in respect of making changes to equality and human rights law. This would ensure that Parliament retains the right to scrutinise any changes to equality and human rights laws. Any proposed changes would be made by primary legislation and not delegated powers. We propose that a new House of Commons sub-committee should be set up specifically to scrutinise the delegated legislation arising from the Bill and to recommend the level of scrutiny each regulation should receive as it progresses through Parliament.

Non – dilution of Equality and Human Rights

As previously stated we welcome the Government’s stated commitment:

“to continue to protect all protections covered in the Equality Act 2006, the Equality Act 2010 and equivalent legislation in Northern Ireland will continue to apply once the UK has left the EU”.

The Bill needs to be amended to include the principle that leaving the EU should not mean that equality and human rights law is diluted in anyway. A clear commitment in the Bill to retain and protect our existing equality and human rights laws is a fundamental omission if we are to maintain one of our great achievements, building a world we all aspire to live in and be part of. This could be achieved by the inclusion of a specific clause which requires Government when drafting Brexit related legislationto take account of the need for the law relating to equalities and human rights:

• to be retained and protected
• to continue to reflect best international standards and practice
• to be scrutinised effectively by Parliament.

Such a clause would ensure there is no dilution of equality and human rights laws as we leave the EU and that Parliament is able to scrutinise any changes.

Court's Consideration of EU Law

The Bill provides that existing Court of Justice of the European Union (CJEU) case law is retained as law, but allows the Supreme Court of the United Kingdom and Scotland's High Court of Justiciary to depart from it, after applying the same test as they would apply in deciding whether to depart from their own case law. CJEU judgments made after the date of exit will no longer automatically become binding in the United Kingdom but the UK courts may consider them if they consider it appropriate to do so. However, the Bill does not provide any guidance about when and how they should do so.

This uncertainty how EU law will apply after incorporation is cause for concern. The lack of legal certainty is contrary to one of the fundamental principles of the Rule of Law. Lord Neuberger, past President of our own Supreme Court, expressed concern about the draft Bill and that the lack of clarity would place a difficult burden on the judiciary system.

It is our view that it is essential a clause is included in the Bill to clarify when and how the courts can take into consideration developments in EU law after the UK has left the EU. It is our suggestion that the Bill should make provision for the courts to be able to consider CJEU case law when a doubt arises about the construction or application of any law relating to equality and human rights. This would provide a sensible level of consideration, without binding the courts.

The Lord Chief Justice has also asked for confirmation that mutual recognition of British and EU court judgements will continue after Brexit. Sharing best practice benefits us all and keeping pace with CJEU case law developments is in all our interests. If leaving the EU means there is no longer recourse to the CJEU then an alternative mechanism needs to be in place to ensure the highest standards of equality and human rights in the UK are maintained in the future.

(Sending letters individually insert specific section about specialist area e.g. NAWO gender equality. All of the above is equally relevant. Could also include examples above where appropriate).

It is fundamentally important to all of us that democratic processes are respected; there are safeguards on the powers given to Ministers in the Bill; and robust scrutiny mechanisms are in place at all levels. The Brexit process must involve Parliament, the devolved nations and civil society. We have a long tradition of valuing diversity, upholding people’s rights, and challenging intolerance. Looking to the future what is important is for us all to have a clear vision of the country we want to live in after Brexit and work together to achieve this.With this in mind there is a strong case and opportunity for the UK to be a globalleader on equality.

We look forward to receiving your response.

Yours sincerely

There is a real risk that the lens on the women’s agenda will be lost, women’s voices not heard and women’s economic prosperity at risk because of a possible recession. As we know decisions can often be gender blind and the need for gender impact assessments and gender budgeting is needed more than ever and must become an integral part of the Governments work as we move towards leaving Europe. If there is a recession then measures must be put in place to ensure women are not hit the hardest.

In the women’s sector we are keen to move forward in a progressive way whilst making sure that hard fought for rights are not lost or diluted and the women’s agenda does not slip backwards. Our aim is to work with the Government to protect and preserve women and gender equality rights.To ensure women’s rights are not weakened or lost in the Brexit negotiations and repatriation of EU law into UK laws.

The EU has been at the forefront of driving equality for women and the UK Government has played a leading role. The collective of member states working together has made it possible to have equal treatment for part-time workers; anti-discrimination legislation on employment, training and working conditions; the EU Pregnant Workers Directive which gave women the right to time off work to attend ante-natal appointments; protection from discrimination on grounds of gender reassignment; sex discrimination rules which place the burden of proof on the defendant; legislation to provide equal pay for work of equal value. Provisions which outlaw discrimination in employment on grounds of sexual orientation were as a direct result of the employment equality directive. The discrimination provisions on grounds of race, disability and age were also was extended by the Employment Equality Directive. We know that women experience multiple disadvantages based on race, sexuality, disability, income vulnerability, migration status and other factors. The need to prioritise and address the specific needs of women facing multiple-discrimination must not be lost during the negotiations.

It is not just about protecting what we have, it is also about addressing gaps and uncertainties in laws currently in place and ensuring women have access to the law. Brexit must not result in a rollback of our rights and equalities standards. We still have the gender pay gap, inequality in pension provision, need for improved maternity and parental care provision and improved work life balance that recognises the need for equal sharing of caring responsibilities to name a few.