European Union (Withdrawal) Bill — House of Commons, 2017-11-15
Topic: Civil Rights
Katherine Anne Green (Labour, Centre-left): I rise to speak to amendment 148 and the other amendments and new clauses in my name, which relate to the rights and interests of children. Most of the debate this evening has not concentrated on that important group of people, who will be affected significantly by this legislation, and many hon. Members will share my deep concern at the shockingly limited amount of time we have been given over the debates on the Bill to attend to such vital matters The decision to leave the European Union and the manner in which it is done could not be of more importance for our children and young people. They are the generation who will live with the consequences of our decisions, yet they did not get a say in them, so we have a special responsibility in this place to make sure that we put their interests at the heart of this legislation My amendments and new clauses seek to place that responsibility on a statutory footing and to remedy the constitutional gap that will otherwise arise in relation to children’s rights when we leave the EU. They take as their basis our existing commitments as a signatory to the UN convention on the rights of the child, which is itself the basis of the EU law and rights framework that applies to children The Government said that rights and obligations in the UK should, where possible, be the same after we have left the EU as they were immediately before we leave. I heard what the Minister said, and I will reflect on it: he believes that other provisions in UK domestic law will serve to continue the protection that is currently in place through EU law and its relationship to the UN convention. However, I do have concerns, and although I do not intend to press my amendments and new clauses to a vote tonight while I consider the Minister’s position, I hope that he will consider some of those concerns, particularly in relation to the Henry VIII powers. Those powers mean that amendments could be made in future to the rights currently enjoyed by children and that those rights would not necessarily be properly protected, as they are now, by the UN convention We have seen a number of EU instruments enacted that have conveyed direct entitlement for children on a whole range of issues, from migration, child protection, health and safety, medicine, and access to social and economic rights, to family breakdown. Some of those rights have been conferred under directives that have been partly implemented and incorporated into UK law. Nevertheless, the missing bits of the directives can be automatically accessed by children because of our membership of the EU and because the constitutional underpinning to the EU rights framework for children is that the UNCRC is followed in EU law. We see that in the treaty on European Union and in the charter of fundamental rights, which impose a constitutional obligation on member states to adhere to children’s rights standards when implementing EU law The position in the UK, however, is somewhat different. Although the UK has ratified the UNCRC and therefore remains bound by it, the UNCRC is viewed merely as an interpretive tool for other human rights instruments and the common law, which are directly justiciable in the UK. There is no explicit constitutional commitment to children’s rights in the UK at central Government level. Instead, our children’s rights framework relies on a combination of domestic legislation, as the Minister said, of directly applicable EU law and regulations, and of interpretation of those measures in the light of our obligations under the UNCRC and other treaties That gives rise to a number of concerns about the protection of children’s rights post Brexit. Unlike the Court of Justice of the European Union, the UK courts and tribunals, particularly at first instance, are largely resistant to drawing on the UNCRC or the EU charter to interpret domestic obligations. All evidence to date reveals patchy compliance with the provisions of the convention, and the UK’s human rights instruments, such as the Human Rights Act 1998, do not provide full protection for children—as we saw, for example, in the recent Supreme Court case of SG, where it was found that, despite being in breach of the UN convention, national law could breach children’s rights and still not be unlawful This incomplete coverage calls children’s rights into question in future when EU law is either not fully transposed or where the Bill will enable the Government to modify legislation post Brexit. That is a concern, for example, where national law is silent on the implementation of specific positive obligations, and where the absence of comprehensive protection for children across UK domestic law means that children will face gaps in their rights. Even if transposition is complete, the Bill will allow the Government to modify legislation in ways that might not conform with international obligations, without further scrutiny This is also a concern in relation to trade deals. Under current EU law, the free circulation of goods and services between member states has to be balanced against the need to subject such goods and services to sufficient scrutiny with a view to protecting the welfare of children who may be exposed to them. As the UK embarks on new trade deals, particularly if it withdraws from the customs union, we will need a comparable mechanism to ensure that any new trade deal includes sufficient safeguards for children who will be exposed to foreign products and services There are questions in relation to children’s residence and citizenship status. EU law requires that any decisions on residence and status must take into account the best interests of the child. The continuing lack of clarity in relation to the position of EU citizens, including EU child citizens, in this country is deeply troubling. Serving the best interests of children should not mean that their rights are dependent on the rights of their parents, but without a clear instrument for protecting children’s rights and interests post Brexit, they could be so dependent Given the range of potential gaps in the domestic legal framework for children’s rights, direct incorporation of the UNCRC into domestic law would provide sturdier protection against any diminution in children’s rights under EU laws following Brexit. Amendment 148 therefore seeks to preserve after our withdrawal from the EU any rights or obligations arising from the UNCRC. It would ensure that the rights that children have previously been able to rely on before the CJEU do not become illusory in the absence of an explicit UK constitutional commitment to children’s rights in future Amendment 149 would ensure that new legislation introduced by Ministers to deal with deficiencies arising from withdrawal would have to be UNCRC-compliant. Amendment 150 makes a similar provision in relation to regulations introduced by Ministers for the purposes of implementing the withdrawal agreement. New clauses 34 and 36 would require public authorities to act compatibly with the UNCRC after exit day. New clause 34 would also require a child rights impact assessment to be conducted In summary, my amendments would ensure that additional powers afforded to Ministers in this Bill do not contravene our international obligations. They would place on a statutory footing the Government’s undertaking to protect the same rights that children have on leaving the EU as they have before we leave. They demonstrate that the UK fully recognises the importance of children’s rights and the seriousness with which we take them.