European Union (Withdrawal Agreement) Bill

Baroness Butler-Sloss Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, I cannot really think that that is how things will play out. Yesterday I heard that an agreement had been made, meaning that there would be no vote that evening. On the strength of that, I arranged to take my wife out for dinner at last. Then everything changed, and there was to be a vote— indeed, there were to be two votes. I slipped out before any of that happened to phone my wife and say, “Dinner’s off.” I simply make the plea that we distinguish between what is in the marriage contract and the conventions that we create for ourselves that help marriages, and other relationships, to flourish.

This is a convention; it is not a law. But in granting this convention and incorporating it in the Bill, we will improve the relationship between us and the people in the devolved Administrations. It is so simple. We have heard arguments about things being set in stone, and about the thin end of the wedge. Who remembers reading FM Cornford’s Microcosmographia Academica? One or two—these are the educated people. It was an argument about what happens in academic circles, where there is always a body of people who are resistant to change. They resist change on the grounds that it may be the thin end of the wedge, or set things in concrete, and all the other things I have been hearing in these wretched debates. Please let us realise that the softer acknowledgements of relationships, as well as the hard ones, help the debate, and the relationships, forward.

[Baroness Butler-Sloss (CB)]

My Lords, I had not intended to speak, but over the last week I have listened to the various representatives of the devolved Administrations in this union of ours. Speaking as a totally English person, without any relationships in any of the three devolved areas—other than being married to an Ulsterman—I think that we English ought to be very careful and listen to what the devolved areas are saying to us. It was said earlier that the Government, and indeed many English people, might not really appreciate what devolution has meant. Perhaps it is time we did.

[Lord Morris of Aberavon (Lab)]

My Lords, I support the amendment, which would put in statutory form what has grown into an important convention. I would like clarification, which I failed to get in yesterday’s debate, regarding the breadth of the convention. I asked a specific question:

“will the Minister clarify and emphasise that legislative consent would normally be required for any regulation that would be brought in under this Act?”—[Official Report, 20/1/20; col. 958.]

I was referring in particular to Clause 21.

As I did not get satisfaction from the Minister’s reply, I repeated my question later, saying:

“I might be a slow learner, but, following the point made by the noble and learned Lord, Lord Thomas, I would like to know which specific points cannot be dealt with by a Section 109 order.”


A Section 109 order would be a consensual matter, as opposed to one imposed from Westminster. The Minister replied:

“I cannot give the noble and learned Lord the answer to that question, but I can give him the assurance, from speaking to my legal advisers, that in the negotiations that will unfold there will be areas that we think will be under discussion that might stand outside those areas I have touched on regarding Section 109 and the ability to direct Welsh Ministers.”—[Official Report, 20/1/20; col. 964.]


Perhaps now, after some more thought, the Front Bench can give the clarification that I required on how, from the viewpoint of Her Majesty’s Government, the convention would be implemented.

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[Baroness Butler-Sloss]

My Lords, I have put my name to this amendment. A few days ago, we discussed Clauses 21 and 26, as referred to by the noble Lord, Lord Howarth, which people called a constitutional outrage. This is far, far worse. As a constitutional issue, Clause 41(1) takes the Government into realms which, in the years that I have been in this House, I have never seen before.

The noble Baroness, Lady Kramer, set out most of what I wanted to say, putting it rather better than I would have. There is not a great deal else to say, but if the Government are going to say, as I am sure they will, that they do not propose to use these powers, other than to a very limited extent, the short answer to that, speaking as a lawyer, is, “Why have them here?” Why put something so unbelievably wide, which could apply to any law enacted in the past until the end of this year, into the withdrawal Bill if they do not intend to use it?

As the noble Lord, Lord Howarth, said, it is not his—or my—intention to get rid of this objectionable clause but purely to alleviate it, so that if the Government require to make such provision in consequence of the Bill, at least we can look at it. If the Commons can get over its majority of 80, it could look more critically at the legislation to see whether it is really what is wanted and look, with the affirmative resolution, at what is being offered by the Government. Therefore, I support the amendment. It needs to be brought forward to both this House and the other place, because this Clause 41 really is beyond belief.

[Lord Callanan]

My Lords, we have reached the final amendment. I thank the noble Lord, Lord Howarth, and the noble and learned Baroness, Lady Butler-Sloss, for their comments and for setting out their positions. I understand the concern of noble Lords about the parliamentary procedure attached to the consequential power in Clause 41. We have already noted these concerns; noble Lords in other debates have raised them and we all read closely the reports of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee. I addressed many of these points last week, when I spoke to the amendment in the name of the noble Lord, Lord Tope. I hope today to provide similar reassurances to the noble Lord, Lord Howarth. I agree with so many of his points on EU withdrawal, although perhaps not this one.

As noble Lords are aware, consequential powers are standard provisions in legislation, even legislation of great constitutional significance, such as the Scotland Act. If noble Lords look at Schedule 5 to the Bill, they will see that we have already included many of the consequential amendments required as a result of the Act. However, we also believe that we need a power to make further consequential provisions to the statute book.

I am aware that the noble Lord, Lord Howarth, yesterday asked for assurance about why the consequential power in Clause 41 is subject to the negative procedure. I understand the noble Lord’s concern but reiterate that the power is limited to making amendments that are consequential to the contents of the Act. Its scope is very different from the powers discussed over the last 10 days by my noble friends Lady Williams and Lord Duncan, which will be used to implement the withdrawal agreement. It is in everyone’s interest that the statute book functions effectively. Moving the consequential provision to the affirmative procedure would frustrate the ability of departments to make the necessary consequential changes before exit day and could lead to legal uncertainty. I hope noble Lords agree with me that this is not the appropriate course of action.

This procedure is limited to giving Ministers the power to make regulations that are in consequence of the Act, like consequential powers in many other pieces of primary legislation. This power will be construed strictly by the courts. It can be used only to make amendments that are appropriate to legislation in consequence of something that the Act does. I am sure noble Lords agree that the use of the negative procedure does not prevent parliamentary scrutiny taking place. Members of this House will still have the opportunity to pray against regulations, should they consider them inappropriate, as is usual for regulations of this kind. I hope I have provided the necessary reassurances to the noble Lord and that, as a consequence, he is able to withdraw his amendment.

European Union (Withdrawal Agreement) Bill

Baroness Butler-Sloss Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Callanan]

It definitely concentrates the minds of both parties. As I said, it has been explicitly agreed in both the withdrawal agreement and the political declaration, as I have quoted, by us and the European Union.

It will ensure that we can move on with negotiating a future relationship with absolute clarity on the timetable. For this reason, the clause must stand part of the Bill. With regard to the questions of the noble Baroness, Lady Hayter, about the EEA and the Scottish Law Society, I will write to her.

[Baroness Butler-Sloss (CB)]

I am sorry to interrupt the Minister, but what has worried me in listening to this debate is what happens if there are impediments to negotiations from the other side which absolutely cannot be resolved by 31 December. Do the Government think that they may have to leave without a deal?

[Lord Callanan]

No. As I have just said, we very much hope that both sides will be able to reach an agreement. Both sides have committed to do so. I quoted the section in the political declaration whereby we and the EU have committed to getting the negotiations finalised and coming into force by the end of 2020.

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[The Lord Bishop of Worcester]

My Lords, I am pleased to support this amendment, to which my friend the right reverend Prelate the Bishop of Durham has put his name. He is sorry not to be able to be in the Chamber today. A few weeks ago, we celebrated the story of Christmas. In the nativity, the happy events in a Bethlehem stable were followed by the more dramatic flight of the holy family to escape the violent persecution of King Herod. As we discuss this amendment, that story of the child Jesus and his parents fleeing from violence to a foreign land resonates loudly.

Children are among the most vulnerable victims of conflict, persecution and violence around the world. We all know that they do not choose to become refugees separated from their families. We as a nation can choose to reunite some families torn apart by conflict by offering children shelter, hope and a future. That is what I believe the majority of people in this country wish, and I am sure that is what the Government wish. This amendment seeks to ensure it by guaranteeing a safe, legal, effective and managed route for child refugees to join their families in this country.

As we prepare to leave the European Union, the United Kingdom has an opportunity to decide what kind of nation it will be and, very importantly, to communicate that to a watching world. The legislation we agree will send a powerful signal about what and who we value.

As has already been observed, this clause has provoked much concern. At a ministerial briefing yesterday, intended to reassure those of us who are concerned about it, I found myself puzzled. We were told of the Government’s excellent record, and that it will continue. That is good, but why then remove the family reunion obligation from primary legislation? We were told that the latter was constitutionally odd, and, further, that the Government need to ensure that their hands are not tied during Brexit negotiations. At the same time, we were assured that refugee children would not become bargaining chips in negotiations about anything else. We were told that there is a need for reciprocity, although the numbers of children going in the opposite direction, from this country to others, is minimal.

As I understand it, the Government maintain that this clause will not change anything. If that is the case, why not remove it? This amendment would reassure those who are nervous that this country will continue to be a place of safety and sanctuary for the most vulnerable refugees fleeing persecution and conflict: children. It would reassure everyone that the Government will uphold their commitment to those children and provide a measure by which we may all be held accountable for our shaping of this nation as a place of hospitality and welcome. That is surely worth a bit of constitutional oddity.

The story of Jesus and his parents fleeing their homeland for a place of safety is a story repeated millions of times over in our world today. Can we assure everyone that this country will continue to be a place of safety for children, especially those who have been separated from their families?

I commend this amendment and ask the Minister: will the Government reinstate their commitment to protect the most vulnerable of refugees: children?

[Baroness Butler-Sloss (CB)]

My Lords, we should be ashamed, listening to the noble Baroness, Lady Hamwee, reading out what a primary school child is reminding us about. We are adults: many of us are parents, all of us are in some way related to children, and for goodness’ sake, we were once children ourselves.

I am quite taken aback. Here we are, as adults, debating what should happen to these children. Section 1 of the Children Act 1989 said that the welfare of children is paramount, but we must also remember that people are vulnerable, and children are vulnerable young people. This small group of children about whom we are speaking have rights. This Government are proposing to take away their rights, because in the 2016 legislation of the noble Lord, Lord Dubs, which I strongly supported, and in the 2018 withdrawal Act, the rights of this small group of children were upheld. Now the Government are taking them away, even from the latest withdrawal Act.

I am sorry that because of family affairs I did not attend the meeting yesterday, and I am afraid that I did not see the Minister’s letter, but it was extremely helpful to hear what was being said. What I find extraordinary is that it is part of existing law. As for the idea that it is an oddity and we should not be legislating, this House supported the House of Commons to legislate for children with rights to rejoin their families in this country in 2016 and 2018. I make no apology for repeating this. For goodness’ sake, it is existing law. We are not talking about going out on a corner or something unusual; we are talking about retaining what this House and the House of Commons have already passed. This is one point which the Government have not met. It is existing law. The children have rights under Dublin, but they also have rights under English law, and this Government are intending to remove them.

The Government’s proposals seem to me to be peanuts. They do not in any way reflect what has already happened in Parliament, and that is not good enough. Coming back to what a primary school child in year 6 was saying, are we going to fail our own children, let alone the children with rights to come to this country?

I did not want to support amendments to this Bill, because I recognise that we have got to get it through, but this is a separate issue. It bears no resemblance to the rest of the withdrawal Bill, but my goodness, it matters. It is not only the children under the trees in Calais and Dunkirk—I saw them last year, and former MP Fiona Mactaggart and I wrote a report about it—but also the fact that they have a right to come here. Are we just going to let it go by the board?

European Union (Withdrawal) (No. 5) Bill

Baroness Butler-Sloss Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Faulks]

The amendment says, “nothing … prevents”, which I suppose could be said to be saying that the royal prerogative exists—so to that extent it is unnecessary—but it restricts what the Prime Minister can do in its final words. That is my answer to my noble and learned friend.

The wise words of the noble Lord, Lord Norton of Louth, at Second Reading about the constitution are particularly relevant in this context. One of the repeated observations from the EU is that it wants to know what the UK wants. In the context of this Bill, it will ask the reasons for the extension. What answer is the Prime Minister supposed to give, acting as an agent for this disunited Parliament?

This amendment is a worthwhile attempt to clarify the mandate, which apparently the Prime Minister has by virtue of this Bill, but I doubt it is necessary, for the reasons I have given, and I suggest that the House thinks long and hard before making such an important change.

[Baroness Butler-Sloss (CB)]

Will the noble Lord answer the points of concern of the noble Lord, Lord Pannick, as to why Amendment 7 is needed?

[Lord Faulks]

I do not want to misrepresent what the noble Lord said, but he suggested that there might be some legal uncertainty and that, theoretically at least, I or some other barrister might be instructed to argue something in court, and this is to avoid legal uncertainty. I am all for avoiding legal uncertainty, but the existence of the royal prerogative can surely not be in doubt, and this is, I suggest, an attempt to fetter that royal prerogative.

I finish with this observation. Lord Reed, Deputy President of the Supreme Court, said in the Gina Miller case of the royal prerogative that the,

“the value of unanimity, strength and dispatch in the conduct of foreign affairs are as evident in the 21st century as they were in the 18th”.

This Bill and this amendment substantially undermine that strength.

Brexit: Options

Baroness Butler-Sloss Excerpts

Monday 18th February 2019 Lords Chamber

[Lord Callanan]

My noble friend makes a good point, although the definition of a hard border is of course complicated; it is generally understood as being related to the installation of border infrastructure.

[Baroness Butler-Sloss (CB)]

My Lords, why are the Government not asking for an extension?

[Lord Callanan]

Because we do not believe that an extension would solve our problems; it would only delay the date by which a decision must be made. As I have said before, the legal default in legislation passed by both Houses is that we leave on 29 March, with or without a deal.

Brexit: Withdrawal Agreement and Political Declaration

Baroness Butler-Sloss Excerpts

Wednesday 9th January 2019 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I am sad to have to disagree with the noble Lord, Lord Grocott, with whom I very often agree. I had intended not to speak, but we are now less than three months from the deadline, so I feel that I have to add something. I am so shocked and alarmed by the feeling of drift and national crisis shared by many people outside Parliament and the failure to make decisions which are more important than any made since the Second World War. I do not resile from mentioning the Second World War, despite what the noble Lord, Lord Grocott, says.

I feel like the noble and learned Lord, Lord Hope, somewhat trapped in the situation in which we are today. I am of course well aware that the decisions have to be made in the other place. There is no question of a veto, but this House has a responsibility to advise, and that is what we are doing today.

Sitting as a Cross-Bencher, I watch the toing and froing of the political parties, the major disagreements and divisions within the two major parties and the resulting acrimony. I am not the only person to watch it. Many of the public feel badly let down by the level of hostility and infighting by our elected representatives, and deserve better from Parliament.

It seems impossible to me—and, I think, to others—that, if the withdrawal agreement is voted down in the other place, we can scramble together an alternative sufficient agreement with any of the immediate consequential legislation in under the three months remaining. We should support those Members of the other place, leavers and remainers, who have—in my opinion, properly—called for the Prime Minister to rule out a no-deal exit on 29 March. This House too should do everything we can to prevent that.

To avoid this impending crisis and the sense of rising panic that preparations for no deal are engendering, the Government should either ask the EU for an extension of Article 50 for at least a year or unilaterally revoke Article 50. The European court has ruled that we can do this, as my noble friend Lord Kerr said today. These proposals might possibly need to be put to the people in another referendum. I am not particularly supportive of referenda but I cannot understand how a single referendum is a total block on any further discussion of our relationship with the European Union, or how a further referendum can possibly be seen as undemocratic. I believe it was the noble Lord, Lord Reid, who asked just before Christmas why we could not have a further referendum, when we have regular elections. The last referendum cannot be set in stone: in my view such an approach is itself undemocratic. If the people vote for an agreement that entails us leaving the European Union, we can reissue Article 50 and leave on those terms.

I recognise that my suggestion will provoke an outcry among the most fervent Brexiteers, but my impression is that many in the other place—and possibly a few in this House—have not yet faced reality. The problems before us have got beyond party politics. The time has now come for MPs in all parties to look across party lines and put the best interests of our country before political manoeuvres. After an extension or revocation of Article 50 a cross-party solution must be found that does not impact adversely on the poor and would meet with approval within and outside Parliament. However difficult and protracted that process might be, the British public have every right to expect Parliament in this crisis to act responsibly and guide us through the best route possible to protect our national and international interests.

Brexit: Legislative Timetable

Baroness Butler-Sloss Excerpts

Monday 7th January 2019 Lords Chamber

[Lord Callanan]

I accept the noble Lord’s clarification. We have submitted over 300 of them for the appropriate scrutiny, and the rest will be submitted for scrutiny in due course.

[Baroness Butler-Sloss (CB)]

My Lords, if we do actually crash out on 29 March, what happens to the Northern Ireland border?

[Lord Callanan]

I am not sure I like the noble and learned Baroness’s term “crash out”. We will leave on 29 March because we had a referendum on the subject and because Parliament, both in this House and the other, has voted on two occasions—in the notification of withdrawal Act and the withdrawal Act—for the UK to leave and for the referendum Bill to be approved. We, the European Commission and the Irish Government have made it clear that there will not be a hard border on the island of Ireland.

European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Baroness Butler-Sloss (CB)]

I do not know which way to vote, so what the Minister is saying to the House is enormously important to me. Are we actually going to be able to have enforcement by the European Court of Justice until the moment of the completion of the implementation?

[Lord Callanan]

That is what has been agreed in the implementation period that we have agreed with the EU so far—but it will be the subject of legislation that we will be able to consider.

European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[The Earl of Clancarty (CB)]

Before the noble Lord sits down, this is being tested in the courts in Europe, so not everyone is of the opinion that you cannot have European citizenship. I believe that in June we will hear the result of the appeal by the Netherlands.

[Baroness Butler-Sloss (CB)]

My Lords, I am the only member of my family unfortunately unable to get an Irish passport, and I very much resent it. I admire the noble Lord, Lord Wigley, for raising this issue, but I fear that my noble friend Lord Kerr has got it absolutely right. I wonder whether, when we have left, there will be any possibility of negotiating any sort of individual relationship for UK citizens with the European Union. That is my hope, but perhaps it is a faint hope. Much though I admire what the noble Lord, Lord Wigley, said, my noble friend Lord Kerr is absolutely right and there is no point in supporting this amendment.

[Lord Green of Deddington (CB)]

My Lords, one aspect of this will be dealt with, or should have been dealt with, by looking at the immigration system we will have with Europe. We have made proposals for the free movement of young people, and we could have proposals for movement without visas and so on and so forth. Personally, I think the Government made a serious mistake in not setting this out and getting into a negotiation with the European Union that would tackle some of the aspects that have been raised.

European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Baroness Butler-Sloss (CB)]

I was President of the Family Division. It is interesting that, as far as I know, in domestic family law, nothing whatever is said about rights for children up to the age of 16. There are some medical rights for children aged over 16. In the human rights convention, nothing is said about the rights of children, which makes the United Nations convention absolutely crucial.

I add just one further point. In 1988, I was the author of a report on the Cleveland child abuse inquiry. My second recommendation was that children ought to be viewed as people and not objects of concern, which is how our domestic law looks at children. It is a very serious matter. If we do not have the protection of the UN Convention on the Rights of the Child in its various articles, we will fall very seriously behind—and that is why I support the amendment.

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[Baroness Goldie]

My Lords, I am grateful to the noble Baroness, Lady Massey, for raising the important issue of children’s rights through this amendment. I know that both the noble Baronesses, Lady Massey and Lady Meacher, met the Children’s Minister recently to discuss these matters. I fully accept that the intention behind this amendment is clearly an honourable one. However, it would in effect add no further value to preserving current safeguards on children’s rights within the Bill. This is because the amendment implies that the EU offers additional duties or functions to safeguard children’s rights above or beyond those that exist in the UK. That concern may stem from the Government’s proposal to not retain the Charter of Fundamental Rights, subject now to further consideration when this Bill returns to the other place. However, if the charter no longer applies once we exit the EU, this would not impact on the UK’s ability to protect and safeguard children’s rights, as I shall endeavour to explain.

The amendment also states that there are some children’s rights which are not currently protected under domestic law but are under EU law. Again, however, we do not accept their construction. The noble Baroness, Lady Sherlock, raised the important point about what these rights are and what will happen to them on exit. Children’s rights are, and will remain, protected in England primarily through the Children Act 1989, the Adoption and Children Act 2002, and the Children Act 2004.

[Baroness Butler-Sloss]

As one of those who was involved in the drafting of the Children Act, my recollection is that it is entirely devoted to the welfare of children and their best interests. I cannot remember a single word about rights. Parents have rights and responsibilities, but not children.

[Baroness Goldie]

I defer to the noble and learned Baroness’s prowess in this area—I would not seek to usurp it for one moment. I am merely giving that Act as an example of part of the framework that currently exists in statute to protect children. If parents indeed have responsibilities under that Act, presumably that confers benefit on the children. Additionally—and I was interested that noble Lords did not refer to this—the European Convention on Human Rights as a whole offers protection of children’s rights, and this is implemented by the Human Rights Act 1998. Children are not excluded from these provisions.

I also want to make clear to the House that the overall package of children’s rights protections set out in domestic legislation can be challenged in the usual ways in the event of a breach of a specific provision of domestic legislation. This will continue to be the case following our withdrawal from the EU.

A number of contributors raised the interesting question of sanctions against breaches. I have no specific information on that but I will undertake to investigate and, if I can procure any information, I will certainly write to those who raised that specific aspect.

As has been stated during previous debate on this—and I thank those who have provided helpful contributions—the Government take very seriously the need to ensure that proper checks and balances are in place so that we continue to safeguard and promote children’s rights. The intention behind this amendment is clearly to create additional safeguards. However, I suggest that sufficient measures already exist which will not be affected by our withdrawal from the EU.

It is important to recognise that all state parties undergo rigorous periodic reporting rounds on the UNCRC, to which a number of contributors referred, consisting of intense scrutiny and challenge. The last reporting round concluded in 2016, with the United Nation’s concluding observations published in July of that year. In response, the Government reiterated their commitment through a Written Ministerial Statement in October 2016. In January 2022, the Government will submit their next UK periodic report for the United Nations Convention on the Rights of the Child to the UN. This report will primarily address the UN recommendations that came from the last reporting round, which, as I say, concluded in 2016. In addition, next year the Government will be submitting a mid-term report to the UN Human Rights Council on the 227 United Nations recommendations, many of which relate to children’s rights. This report is a voluntary commitment of the UK, aimed at keeping all UN recommendations under review in advance of the next universal periodic review’s dialogue, expected in 2021.

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[Lord Bassam of Brighton (Lab)]

My Lords, my name is joined with that of the noble Lord, Lord Dubs, on this amendment. I think that if I was to make a lengthy speech in support of the amendment the House would not thank me. It is much better that we try to resolve the matter.

I want to thank the Minister for our meeting earlier today with the noble Lord, Lord Dubs. It was very useful but also quite instructive. I think that we were agreed that we were not far apart in what we were both seeking to achieve. Where we differ fundamentally is that the noble Lord and I share the view that we should put such a provision in the Bill.

There was a lot of resistance when the noble Lord tried to do this with his original Dubs amendment. Some of the arguments then were exactly the same. They were: “This isn’t something you should try and commit to legislation”. Well, I think it is, because it sets a benchmark and a threshold, and it gives an instruction. The Government are often keen to tell us that they have been instructed on things, and we need from time to time to be clear about what we are trying to achieve in negotiations. This is one of those occasions.

We should not resile from our humanitarian commitment. This evening, by supporting the amendment in the name of the noble Lord, Lord Dubs, we will be fulfilling that commitment. I therefore hope that the House comes speedily to a conclusion in this debate, so that, if we have to, we can divide on it and give support to the noble Lord on a very important matter to which I think we all wish for a happy outcome.

[Baroness Butler-Sloss]

My Lords, I, too, have put my name to the amendment. As the noble Lord, Lord Dubs, has pointed out, we are talking about the rights of children. This is not just a humanitarian question; it is about a number of children across Europe who have a right to come to this country at the moment because their family is here.

Having gone to Calais last summer and having with Fiona Mactaggart, the former MP, written a report on what was going on in Calais and Dunkirk, I know that the plight of children there who have not yet been processed is dire. The plight of children in the Greek and Italian camps is very poor. Therefore, the way in which Dublin III works is patchy, but, as the noble Lord, Lord Dubs, has said, it works to some extent. Please let me repeat: we are talking about children with rights and not advancing arguments based exclusively on humanitarian grounds.

I was lucky, with the noble Lord, Lord Dubs, to be at a different meeting from that referred to by the noble Lord, Lord Bassam, in which we met two Ministers, the noble Baroness, Lady Williams, and the noble Lord, Lord Duncan. We had useful discussions. I entirely accept the genuineness of their offers to the noble Lord and me. They are trying hard to placate us. They have expressed good intentions which are, as far as they go, valuable, but they are aspirations as to what might happen at a later date. They are talking about the possibility of an immigration Bill and of another Bill later this year, or what they call in lovely general terms a vehicle into which this sort of thing can be placed. As far as it goes, that is good, but it does not go far enough.

I would like the House of Commons to have time to discuss this amendment if this House passes it, as I hope it will, so that, by that time, Ministers will perhaps have got their act together to be able to make much more concrete offers to the House of Commons. Therefore, it is important that we support this amendment at this stage so that at least the other House has the chance to consider it. I will therefore vote for the amendment if the House divides.

[Baroness Sheehan (LD)]

My Lords, I shall say just a few quick words as my name is also attached to this amendment. In essence, what the amendment boils down to is that without the UK’s continued participation in Dublin III, which would be the case if Brexit were to happen, an unaccompanied orphan in Europe, among others, could no longer apply to be reunited with close family members while an asylum claim is being processed. Brexit is about many things but it is not about doing away with one of the very few safe and legal routes that exists to bring some of the most vulnerable children to the UK.

Since this amendment was debated in Committee we have witnessed the maelstrom that has raged over the inhumane treatment of the Windrush generation. Across the Commonwealth, how the Windrush scandal plays out is being watched with concern and our reputation is on the line. I say to the Government that at a time when we are trying to redefine our place in the world and looking for good will and support from friends across the globe, to be seen as a nation that is trying to isolate itself from responsibilities to people seeking sanctuary, some of them very young, will not do us any favours.

The Britain that the world knows and that the British people, by and large, recognise is the Britain that has always spoken up for values and principles that enshrine in international law the rights of vulnerable people who, through no fault of their own, find themselves destitute and place themselves at our mercy. We have a proud history of welcoming them and I should like us to continue to do so. So should the noble Lord, Lord Dubs, decide that the Government’s moves are not enough to satisfy him and wish to seek the opinion of the House, we on this side of the House will wholeheartedly support him.

European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

Moved by

[Baroness Butler-Sloss]

315: After Clause 11, insert the following new Clause—
“Saving of acquired rights: Gibraltar
(1) Nothing in this Act is to be construed as removing, replacing, altering or prejudicing the exercise of an acquired right.(2) Any power, howsoever expressed, contained in this Act may not be exercised if the exercise of that power is likely to or will remove, replace or alter or prejudice the exercise of an acquired right.(3) In subsection (2) a reference to a power includes a power to make regulations.(4) In this section an acquired right means a right that existed immediately before exit day whereby—(a) a person from or established in Gibraltar could exercise that right (either absolutely or subject to any qualification) in the United Kingdom; and(b) the right arose in the context of the United Kingdom’s membership of the EU and Gibraltar’s status as a European territory for whose external relations the United Kingdom is responsible within the meaning of Article 355(3) TFEU and to which the provisions of the EU Treaties apply, subject to the exceptions specified in the 1972 Act of Accession.(5) Nothing in this section prevents the use of the powers conferred by this Act to the extent that acquired rights are not altered or otherwise affected to the detriment of persons enjoying such rights.(6) In this section, reference to the “1972 Act of Accession” is reference to the treaty concerning the accession of the Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland to the European Economic Community and to the European Atomic Energy Community.”

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest as a vice-chairperson of the All-Party Group on Gibraltar. I add that the noble Baroness, Lady Hooper, who has attached her name to the amendment, is very sad not to be here but she is currently on business in Geneva.

I tabled this amendment just after Second Reading, at a time when I was particularly concerned about the potential threat of Spain’s veto over Gibraltar—Spain was discussing exercising its veto over the transition period. Some weeks before I tabled the amendment I asked a supplementary question at Oral Questions about Gibraltar and the threat from Spain and received a rather surprising reply from the Minister that it was most unlikely that Spain would exercise its veto because Spain and the United Kingdom were on good terms. That answer caused astonishment both in the House and particularly, as one can imagine, in Gibraltar. So although I was aware of the helpful discussions continuing at that time between the United Kingdom Government, the Gibraltar Government and, in particular, the Department for Exiting the EU, I tabled this amendment as a precaution. Now I am glad to inform the House that there have been fruitful discussions between the UK Government and the Gibraltar Government and the situation has changed significantly.

The Gibraltar Government are now entirely happy with the reassurances they have received and believe that the progress made is substantial, that the United Kingdom Government are engaged in good faith, that the transition period is now protected, and that it is the unshakeable objective of the United Kingdom Government to ensure the seamless continuation of the existing market access into the UK and to enhance it where possible.

[Lord Foulkes of Cumnock (Lab)]

I received a copy of a letter from the representative of the Gibraltar Government which indicated that they wanted the noble and learned Baroness to withdraw her amendment. I was surprised at the nature of the comments in that letter. All they seemed to be concerned about was internet gambling and maintaining their rights to provide it to the United Kingdom. If there is one thing many of us would not want them to maintain, it is the right to internet gambling. They did not seem to be concerned about the rights of workers in Gibraltar going over to Spain or workers in Spain coming into Gibraltar, of people travelling, tourists or anything else. I wonder whether the agreement the noble and learned Baroness is lauding is of benefit to ordinary people in Gibraltar or of benefit only to the internet gambling syndicates.

[Baroness Butler-Sloss]

I have a feeling that the noble Lord, Lord Wigley, has not seen as many of the documents as I have.

[Lord Foulkes of Cumnock]

The noble Lord, Lord Wigley, is many things, but he is not a ventriloquist.

[Baroness Butler-Sloss]

I apologise. I was looking one seat further to the right. However, I feel that the noble Lord has not seen as much of the documentation as I have. I have the strong impression that the Gibraltar Government are extremely concerned about the movement of people, particularly between La Linea and Gibraltar. The agreements between the United Kingdom and Gibraltar Governments on the transition period go far beyond gambling—I am not the least bit interested in gambling—and include all the other areas of interest to the ordinary people of Gibraltar, including education. One of the agreements between the United Kingdom Government and the Gibraltar Government enables Gibraltarians who want education in this country to have it on the same terms as they have always had it and to be treated as if they were UK citizens. That is the kind of thing which is going on.

[Lord Wigley]

It really is me now. The noble and learned Baroness mentioned market access, which links in to the point the noble Lord, Lord Foulkes, made a moment ago. Can the assurances she has got be projected as single market access/participation? If so, does that not necessarily run way beyond the links between Gibraltar and Spain and into the generality of our relationship with the European Union?

[Baroness Butler-Sloss]

I do not know the answer to that because what I have been told by Gibraltar House, in particular by Fabian Picardo, the Chief Minister, is that there have been careful discussions with various Ministers, particularly the Minister for Exiting the EU, and that there will be protection during the transition period. There are also careful negotiations between Gibraltar and the UK on what happens after Brexit takes place. Those are not finalised, but the Gibraltarians are confident that they will get what they want because the Government have said that they wish to ensure the seamless continuation of the existing market access into the UK and to enhance it where possible.

Perhaps I may move on. The UK Government have been clear and insistent in stating that they are negotiating for the whole of the UK, including Gibraltar, and are standing shoulder to shoulder with the Gibraltarians in their unswerving commitment to the UK/Gibraltar relationship. However, I would add that the threat from Spain is real and continuing. Only in the past week or 10 days, another threat has come from Madrid about the exercise of the veto. However, the Gibraltar Government have accepted the assurances of the United Kingdom Government that the existing market access arrangements between the UK and Gibraltar will not be affected by the exclusion of Gibraltar in any sort of veto exercise by Spain during the transition period. Moreover, as I have said, there are continuing discussions about the position post Brexit and there remains, I have to say, a continuing threat from Spain. Perhaps unlike the noble Lords across from me in the Chamber, I would like to congratulate the Government on their approach to Gibraltar and how they are working with the Gibraltarians.

Gibraltar is a strong and faithful friend of the United Kingdom—it is important to remember that—and it deserves to be looked after properly. I can assure the Committee, however, that everything I have seen leads me to believe that the United Kingdom is acting entirely fairly and correctly. It is doing its best, and it is a good best, to make sure that the arrangements for Gibraltar during the transition period—

[Lord Hannay of Chiswick (CB)]

I am most grateful to the noble and learned Baroness for giving way. I shall speak in support of the amendment before it is withdrawn, but if I have understood the noble and learned Baroness rightly—I have also received a letter from the representative of Gibraltar in London—everything she has said relates solely to the relationship between Gibraltar and the United Kingdom. I have to say that that is not the heart of the matter. The relationship between Gibraltar and the United Kingdom has existed for 350 years and is not affected one way or the other by our membership of the European Union, so the Government are generously giving the Gibraltarians back what they already have.

What I should like to know is whether the noble and learned Baroness, because she is much better informed than I am on this matter, is aware of what has been agreed for the transitional period and the period beyond on the relationship between Gibraltar and the rest of the European Union.

[Baroness Butler-Sloss]

I can be corrected on this, but I think I am right in saying that much of what was arranged between Gibraltar and the United Kingdom on the business between the two countries was directed by the EU, and consequently it is important that the arrangements between the United Kingdom and Gibraltar make it absolutely clear that all trade between the two countries would continue unimpeded. I know no more about what is being said about Gibraltar and the EU than, I suspect, anyone else in the Chamber other than the Minister, because I assume that all of this is subject to the negotiations. But the United Kingdom Government have promised that they will stand by Gibraltar and that they will make sure that they are negotiating for Gibraltar as well as the whole of the rest of the United Kingdom.

I am not in a position to say any more than that, but the amendment was necessary when I tabled it. It is clear that it is not necessary now, but I was not asked to withdraw it. I would not have dreamed of accepting such a request. I was told that it was not necessary for it to go to a vote and that the Gibraltar Government would prefer us not to vote on it, for perfectly obvious reasons. If relations between Gibraltar and the United Kingdom Government are as good as I am told they are, I do not have the slightest desire to rock the boat. I do not propose to take this amendment any further beyond Committee. I beg to move.

[Lord Chidgey (LD)]

My Lords, I added my name to the amendment after Second Reading, as Members will realise. It has been fascinating listening to some of the debate so far, but I go back to what Amendment 315 would do. It would make it clear that the EU (Withdrawal) Bill does not permit the,

“removing, replacing, altering or prejudicing the exercise”,

of Gibraltar’s acquired rights with reference to the 1972 Act of accession. That is what the amendment says. Some of the comments made so far have been very interesting, but they are not soluble.

The amendment has been tabled because, sadly, it became necessary following Spain’s repeated verbal aggressive claims, and not just those relating to the EU (Withdrawal) Bill. Those of us who have studied Gibraltar’s interests over the years will know that it is a repeated problem in our dealings with Spain over Gibraltar’s rights. It has become necessary because of that behaviour from Spain, particularly the claims to which the European Council and Commission have given unwarranted credence and encouragement. There is no legal validity to paragraph 24 in the European Commission’s Brexit guidelines, proposing a right of veto for all 24 EU members on negotiations over Gibraltar. The inclusion of paragraph 24 in the guidelines detracts from driving a good result for all of the EU and for the UK with Gibraltar. This is why we have tabled the amendment.

In the meantime, I agree with the noble and learned Baroness, Lady Butler-Sloss, that it is quite right that a wide package of measures has been agreed by the joint ministerial council of the UK and Gibraltar that covers university fees, health, transport, the environment and fishing—much the same as exists already. The noble Lord, Lord Hannay, made that point very well. The agreement also includes guarantees on continued reciprocal rights for Gibraltar’s citizens on accessing key services.

As a member of the All-Party Group for Gibraltar for more than a decade and a previous vice-chair, I share the view that Gibraltar must be included in the implementation and future agreements, not just in the negotiations. Over the years, the people of Gibraltar have demonstrated how much they cherish their British sovereignty, which has been well deserved for more than 350 years, as the noble Lord, Lord Hannay, mentioned. In response to correspondence from the chair of the All-Party Group for Gibraltar, the Prime Minister has given her assurance in writing that the Government are forthright and resolute in their support for Gibraltar. They are determined to defend the interests of the people of Gibraltar in their negotiations with the EU. But it is early days. As many people keep saying about the EU (Withdrawal) Bill, nothing is agreed until everything is agreed. Amendment 315 seeks to reinforce in every way the resolve of our Governments and our Parliaments.

--- Later in debate ---

[Lord Callanan]

I am not an expert on the legal ramifications of dominion status, so if the noble Lord will forgive me, perhaps I may write to him on that.

[Baroness Butler-Sloss]

My Lords, I thank all those who have taken part in this debate and the Minister for his partial reply. I recognise that nothing is decided until everything is decided. I concentrated on the business arrangements between the UK and Gibraltar because they are one of the major concerns. Of course, there are many other major concerns for Gibraltar, which is stuck in a very difficult position, but the one thing it has is good trade relations with the United Kingdom and a lot of business. That needed to be in at least the first stage of what would be done. It is not just gambling; it is also education, tourism and the other things that the noble Lord, Lord Luce, set out in his speech today.

It is good that, at least as between the United Kingdom and Gibraltar, there are clear guidelines and Gibraltar has protection. We know—I am very grateful to other speakers for having raised these issues—that the position of Gibraltar is extremely precarious vis-à-vis the EU. In relation to migrants, I understand that Gibraltar wants as many as come across the border daily, mainly from La Línea, to work. It is up to Spain whether it lets them come through. It is not up to the Gibraltar Government, who welcome them. As has been said, I think by the noble Lord, Lord Luce, 13,000 people a day go through, 10,000 of whom are from Andalusia and are Spanish workers. It is very much to the detriment of Spain if it does not allow them through. It was, of course, La Línea and the southern part of Andalusia that really suffered when Spain closed the border for some 15 years.

So, there are reasons why Spain might be sensible. One hopes that the positive discussions that go on may have a good effect. However, as the noble Lord, Lord Luce, and I have said, there are dangers of the threat to Spain. All of us enjoy Spanish holidays and many of us have Spanish relationships, as the noble Lord, Lord Collins, has, so we want to be fair to Gibraltar. Gibraltar is part of us but we want to continue to have good relations with Spain. I very much hope that, having got to the first stage—business relations, education and other relationships between Gibraltar and the United Kingdom—we will continue to battle on behalf of the whole of the United Kingdom, including Gibraltar, in whatever arrangements happen during Brexit. Having said that, I beg leave to withdraw the amendment.

Amendment 315 withdrawn.