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.

--- Later in debate ---

[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.

--- Later in debate ---

[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?