European Union (Withdrawal Agreement) Bill

Baroness Hamwee Excerpts

Consideration of Commons amendments & Ping Pong (Hansard): House of Lords & Ping Pong (Hansard)
Wednesday 22nd January 2020 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, I would like to express my personal appreciation for the way in which the noble Lord, Lord Callanan, has handled his responsibilities at the Dispatch Box. Although I am somewhat anomalous on this side of the House in being—if the noble Lord Cormack, will allow me to say—in favour of leaving the European Union, none the less, I am sure that many of my colleagues have also respected the hard work and the gracious spirit in which the Minister has presented the case on behalf of the Government.

However, I cannot agree with his commendation of these so-called Commons reasons. It is disappointing for this House that the Commons has dismissed the amendments that your Lordships’ House sent to them, with no serious consideration whatever. That represents a failure to recognise and respect the proper constitutional role of this House. In the proceedings on this Bill, this House has not sought to obstruct the Government’s purpose in passing the withdrawal legislation. Everybody in this House accepts that the Government have a mandate to do so, and everybody understands the time constraints. None the less, this House sought to improve the legislation in important respects.

My noble friend Lord Dubs, and the noble Baroness, Lady Deech, have made the case very well indeed in respect of the issue raised in the Dubs amendment, but there were also important constitutional issues that arose from the Bill, and they are not negligible. They concern, for example, the formal processes and the spirit in which the Government seek to relate to the devolved institutions as we withdraw from the European Union and develop the new relationship. They concern the excessive Henry VIII powers that the Government have chosen to take in this Bill—one of them, very importantly, providing for the Government to take powers, by regulation, to intervene in the realm of the judges in determining how they should handle European retained law.

There are other areas, including Clause 41, which has provided a very large, very extravagant opportunity for the Government, by regulations, to abolish or amend, in substantial respects, primary legislation. It is not just legitimate but our duty to have considered these matters, and it is disappointing that in the other place, the Government, Ministers and Members of Parliament have not thought it worthwhile to give any significant consideration to these issues. Taking back control of our laws should represent a full restoration of parliamentary government, and a full restoration of parliamentary government should mean a proper working relationship between your Lordships’ House and the other place. It should not mean a new excrescence of, to use that memorable term coined by a very distinguished Conservative, Lord Hailsham, the “elective dictatorship.”

[Baroness Hamwee (LD)]

My Lords, I simply have one request for the Government. What will shortly become Section 37 provides for a statement of policy within two months. The Minister talked about reassuring noble Lords. Those who need reassurance are EU citizens—those covered by my noble friend’s amendment—and those affected by the child refugee situation. I hope that the Government, who have told us that they have been negotiating, can bring forward a statement of policy well before the end of the two months.

[Baroness Ludford (LD)]

My Lords, I am not quite sure why the noble Lord, Lord Callanan, singled me out for mention. I think that I must figure in his worst nightmares—which obviously delights me.

He referred to it taking three years to get the withdrawal agreement approved, but I remind him and the Benches opposite that the failure to approve it sooner was due largely to the refusal of Brexiters to support previous efforts. We remainers do not accept responsibility for Brexit or for the negative consequences that it will entail. We have played our part responsibly in trying to improve the process and the outcome of Brexit, as we have on this Bill.

I am glad that this House was not bullied or intimidated, and that it has improved the Bill. In better times, the thoughtful contributions that we made would have received a more respectful response from the Government—I agree, for once, with the noble Lord, Lord Howarth—but the Government were dogmatically determined to refuse any positive improvement to the Bill. So here we are, and we will see what happens in the months and years to come.

European Union (Withdrawal Agreement) Bill

Baroness Hamwee Excerpts

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

[Baroness Bennett of Manor Castle (GP)]

My Lords, the noble Lord, Lord Callanan, in his arguments against Amendment 27, said that it would be easily overtaken by events. That provides a great argument for the removal of Clause 33. The noble Lord, Lord Newby, pointed out correctly that the next deadline point is 1 July 2020. I confess that I looked at a website to check, and that is 168 days away. If you add in holidays, weekends and so on, and think about how many days that gives us to reach a point where we have to decide whether or not we are ready for the deadline of the agreement with the EU, it is a very short time indeed. The noble Lord, Lord Howarth, said rightly that the economy and companies—I am particularly concerned about small businesses—have been greatly damaged by the uncertainty around Brexit. Removing Clause 33 will take away another point of uncertainty and will give us stability instead of yet another deadline.

Earlier in Oral Questions, my noble friend Lady Jones referred to the false classification—subsequently withdrawn—of Extinction Rebellion in a police document as bringing the law into disrepute. Particularly among young people, it caused grave concern. As the noble Lord, Lord Newby, said, passing this Bill with Clause 33— with something we know the Prime Minister has accepted may have to be removed; we know that a one-line Bill can do that at any point up until 31 December—brings the law into disrepute.

There is also the risk of a crash-out if we get to the end of the year and do not have an agreement. There is a strong suspicion out there in the country—and perhaps among some in this House—that parts of the Government still seek that crash-out outcome. Leaving this clause in the Bill adds to that suspicion.

Finally, we know that the Prime Minister has found it very difficult to find ditches in this country; it has been very hard to identify ditches. I do not think that we want the Prime Minister to waste any more time roaming the country, seeking that ditch that he just cannot find.

[Baroness Hamwee (LD)]

My Lords, can I ask my noble friend a question? If he were negotiating any sort of agreement and learned that the other side had a self-imposed time constraint, would he not regard that as a huge advantage?

[Lord Davies of Stamford (Lab)]

My Lords, the noble Lord, Lord Newby, made an unanswerable case. Human beings have been conducting negotiations since the beginning of time, and over that period there have been certain common conclusions about the sort of approach to negotiations that leads to a favourable outcome and the sort that, on the whole, does not. That is part of the common wisdom of humanity. Part of that is that you are at a great disadvantage in any negotiation if you have time constraints greater than those of your counterparty. What we have here is a Government who want to impose on themselves a time constraint greater than that which applies to their counterparty, which is most extraordinary. Mr Johnson may feel that, after all these millennia, he can revolutionise human psychology, and that the conclusions that have been drawn from human experience up until now are no longer valid. I have had quite a lot of experience of negotiations in my life, both as part of a team and from conducting negotiations myself as a diplomat, as an investment banker, as a Minister and so forth. I know that most of those common wisdoms of humanity are valid and correct, and one veers away from them at one’s peril. If somebody behaves entirely irrationally, as appears to be the case in the Government at the moment, one has to ask whether there is perhaps some Machiavellian plot behind the behaviour that explains this irrationality. That is what worries me, because the obvious explanation of Mr Johnson’s behaviour is that he does not want a successful outcome at all. He wants a hard Brexit or a bare-bones solution. He does not want to say so; he does not want to take responsibility for saying so.

A bare-bones solution would leave out altogether these very important issues of our relationship on security matters with the rest of the European Union, the future of the common arrest warrant, the pooling system of information exchange, and so forth. It would leave out a number of very important matters that appear in other amendments on the Marshalled List today: such things as the Euratom relationship, the European Medicines Agency relationship, the future rights of British subjects living abroad to receive their full pensions in the country in which they have taken residence, and the availability of medical cover to British people finding themselves elsewhere in the European Union. All these are very important matters and of course they would be set aside at a stroke if there were a bare-bones solution. There would be no chance of regaining those benefits. It could be that Mr Johnson actually wants that outcome and does not want to be held responsible for the consequences—human, economic, et cetera—of that solution.

--- Later in debate ---

I support everything the noble Lord, Lord Dubs, said, particularly about the argument that the noble and learned Lord, Lord Keen, did not use on Monday night but that one hears in the corridors: that there is no need for this provision here and it would be better placed in the immigration Act or in Immigration Rules. The noble Lord, Lord Dubs, has demolished these arguments, but I add one more to his. The provision in law now, Section 17 of the 2018 Act, and the provision in this clause—the Government’s new language—are about reciprocal obligations. We would be negotiating to get the other 27 to agree to take unaccompanied children who are in this country and would like to be reunited with their families somewhere in the 27. That clearly is not appropriate to Immigration Rules or the immigration Act, because it is about people leaving the country, but it is highly appropriate to the negotiation about to start. That is why it should be in this Bill. I support the amendment.

[Baroness Hamwee]

My Lords, I too have my name to this amendment. The noble Lord, Lord Dubs, has been very measured, as ever, in his introduction to this debate and it seems the noble Lord, Lord Kerr, gives an unarguable analysis of the position.

I have said of other provisions of this Bill and of the Conservative manifesto that they are dog whistles. If somebody thought that this was a useful dog whistle as a replacement for the 2018 legislation, they got it wrong. Like the noble Lord, Lord Dubs, I believe that the concern in this House for unaccompanied asylum-seeking children reflects public concern. We see them as children and seekers of asylum, not as immigrants whose numbers are to be kept down, and not as in any way other.

The Minister, the noble and learned Lord, Lord Keen, at the end of our day of the Queen’s Speech debate said that Section 17 of the last Act was no longer appropriate because the negotiations have already been started by other states. I cannot read into Section 17 that it refers to those negotiations. The noble and learned Lord is far too skilled a lawyer and wedded to good law to be comfortable with dog whistles in the form of legislation, and I am sure the same goes for the noble Baroness, Lady Williams of Trafford, if she is the one to be answering this debate. I hope this can be explained in more detail—unless, of course, I have misrepresented it. Laying a statement of policy—the requirement of this clause—is not getting the job done.

The noble Lord, Lord Kerr, said there are no other changes. There is one change in the way the terminology is used that I am puzzled about. The reference to the child’s “best interests” has moved from coming to the UK to joining a relative in the UK. I am puzzled about it, but even more bothered. What significance should we read into this? Noble Lords will realise that I do read significance into this. Again, can the Minister help? The new clause must mean something different from the original—which, as has been said, is very modest. In non-technical terms, it means a signal that the UK Government are rowing back from working internationally to protect a rather small number of children who have undergone and are undergoing experiences that few of us could cope with—or, of course, that they are bargaining chips, as has been suggested. I understand that suggestion. It is not just about leaving them stranded on a journey to sanctuary in appalling circumstances; it leaves them vulnerable to exploitation, abuse and the particular risks of getting across the channel. Withholding the right of family reunification is not the way to tackle the scourge of people smuggling and people trafficking. Please let no one say that it would be a pull factor, because it is the push factors that we need to have in mind.

To be positive, I have some questions. What can the Minister tell us about the progress of negotiations on the arrangements, given that the Government have expressed commitment to the principle of family reunion and supporting the most vulnerable children? I think all children are vulnerable. Surely it is not about putting this on the back burner. What discussions are they having with organisations that support families to reunite about the design of a replacement for the Dublin system? What plans are there for necessary domestic legislation? Of course, I would welcome their adoption of my Private Member’s Bill, but I know that is not how these things work.

Earlier this week, other noble Lords may have had an email from a group of “kids”, as they style themselves, from Sherington Primary School in Charlton. I cannot read all their letters, but I will read just a little from one:

“I can’t imagine what it would be like to lose my home, my parents and to have to leave my country. These children are completely alone and terribly vulnerable. Surely we can’t just turn our backs on them. I thought my country was better than that. Please reconsider.”


That is a kid from year 6 of a primary school. I thank the 14 kids, whose names I am not reading into the record for safeguarding reasons. They may be kids, but they display a very clear understanding of the importance of safe and legal routes.

[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?

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[Baroness Williams of Trafford]

I would find it offensive if the Government saw children as bargaining chips. I do not think that any Member of this House or the other place sees a child as a bargaining chip. The Government are seeking to undertake an arrangement in which there is reciprocity. It makes absolute sense that we have reciprocal arrangements with Europe. We might be leaving the EU but we are certainly not leaving Europe, and children here will have family in the EU, just as children in the EU will have family here. We are seeking reciprocity, and Dublin III, as my noble and learned friend said, will be ongoing to the end of the implementation period. Please let us have no more comment about bargaining chips, because the legislation seeks to do the best by all children, whether they be in the EU or the UK.

[Baroness Hamwee]

Before the Minister moves on, I do not understand the answer to the noble Lord, Lord Kerr, although perhaps reading it will help. None of us wants to think the worst of the Government over this matter. It might be helpful if noble Lords could see a copy of the letter that went to the Commission in October. It has been referred to several times but I do not think that it has been seen by any noble Lord.

[Baroness Williams of Trafford]

I am not sure that I can give that undertaking but I will certainly request it. I will also come on to the noble Baroness’s question about the words “best interests” appearing in subsection (1)(a) but not in (1)(b). The phrase “equivalent circumstances” in subsection (1)(b) duplicates that. She might like to take a look at that and, if she is not content, I will be happy to go through it with her.

The noble Baroness, Lady Sheehan, talked about the gap, and my noble and learned friend Lord Mackay pointed out that Dublin III will exist until the end of the implementation period. My noble friend Lord Elton asked for the definition of “relative”. I think that there has been another misunderstanding—that all the relatives were listed in Section 17 but do not appear in Clause 37, although they do. A relative in relation to an unaccompanied child means

“a spouse or civil partner of the child or any person with whom the child has a durable relationship that is similar to marriage or civil partnership, or … a parent, grandparent, uncle, aunt, brother or sister of the child”.

That is quite an extensive list and I hope that that helps my noble friend.

I shall finish on the words of my noble and learned friend Lord Mackay. Section 17 in and of itself gives no rights to children. Through Clause 37 we are attempting to lay out our intentions. We have done so in the manifesto and have already started talks with the EU on this subject. Our commitment to children has not changed.

European Union (Withdrawal Agreement) Bill

Baroness Hamwee Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, one often hears in this building, in answer to the question, “How’s it going?”, “Well, it has all been said but not everybody has yet said it.” In this case, it is appropriate that we demonstrate the strength of feeling and the depth of our concerns through quite a lot of repetition. “Get it done” suggests that Brexit is a single act or event; we know that it is not. The withdrawal agreement is almost too heavy to lift; the political declaration is a slip of a thing, with much-expressed and rather imprecise terms about considering, aiming to and exploring options.

We do have to explore the options. This is not about the House seeking to frustrate the Commons, or to deny the Government’s manifesto or to try to replay 2016. It is about moving from slogans to nuance, from headlines to detail, to make the Bill and the withdrawal workable and to prevent no deal either overall or in respect of a raft of issues. No deal will not mean nothing being in place; it will mean something but not something that would be to our advantage. The Minister said that we would have plenty of time for the scrutiny of secondary legislation. What he did not say, but what I heard, was “until the House realises that the Government have it right and noble Lords stop being over-fussy”.

I have put my name to amendments relating to the rights of both EU citizens in the UK and UK citizens in the EU where, in part, sensible dealings with other countries are needed. However, we can give protection unilaterally, and we will pursue that. The Government seek to reassure us about both the objectives and process of the settled status scheme. I am not normally a Cassandra, but I am not reassured about the rights that those with status will be able to exercise. To mention one, onward movement is important in the services sector, but services seem to have been a poor relation in our discussions.

I also put my name to the objection to losing the 2018 Act provisions for family unity—the so-called Dubs amendment. To say that this is because negotiations have started is unpersuasive. The 2018 Act does not require us to join in those negotiations; it requires us to negotiate. The Minister may tell us that the current clause has the same objectives. If so, why remove the modest obligation to seek to negotiate? We are sending a message that the Government’s heart is not in achieving this objective and that they have already given up on seeking to protect unaccompanied asylum-seeking children and the reunification of families. Is this really the global Britain that we want to be a part of? Noble Lords may be aware that a report by Amnesty, the Refugee Council and Save the Children was published at the weekend. It reported that the child refugees

“were asked what messages they would like the UK Government to hear about the impact of the Immigration Rules on their lives. Without exception, they all invited the Government to imagine themselves or their families in a similar situation to their own”.

I will also pursue this issue through my Private Member’s Bill.

The course that the Government are set on is beyond me. We have the dog whistle of legislation by a Government prohibiting themselves from extending the implementation period. I am puzzled by this. The decision on whether to extend is in their own hands. They could always amend the legislation come June. Are they so apprehensive about how little can be achieved by December that they want to assure everyone that they will be forced to resist that temptation? Does this not hand a huge negotiating advantage to the other side?

We may not be members of the EU after the end of this month, but we will still be Europeans with a past and a future interwoven with that of our European neighbours, who I hope will also be our partners.

European Union (Withdrawal) Bill

Baroness Hamwee Excerpts

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

[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.

[Baroness Hamwee (LD)]

My Lords—

[Lord Goldsmith]

My Lords, my noble friend Lord Dubs, in moving this amendment, described it as a modest proposal. It is modest in two respects. First, for the reason that he gave: all he seeks is to replicate the current arrangements, already approved by Parliament and in operation at the moment. That is not a great change at all from where we are. There is a second reason that it is modest: I pay tribute to his modesty in producing this amendment, having fought for the previous amendment, having persevered, and he is absolutely right to ask the House again to support it. I hope the House will.

It sounds as though the Government are entirely in agreement with the objectives. They agree on the need to protect the most vulnerable children and to provide this way of safety for them to claim asylum where appropriate. It sounds as if the only difference may be over the way to deal with it. Everybody, including my noble friends Lord Dubs and Lord Bassam, the noble Baroness, Lady Sheehan, and the noble and learned Baroness, Lady Butler-Sloss, whose names are on the amendment, recognises that this will require negotiation with other countries, because we cannot do it entirely on our own. Does the Minister agree that if this House were to say in a clear vote tonight what it thinks the Government should do, and put it in the Bill, that will actually strengthen the hand of the Government when they come to negotiate with other countries and others? They will be able to say, “This is what our Parliament wants”—assuming that the other place agrees. Those circumstances will make it much easier to negotiate; that may be the only point.

I am not going to take any more of your Lordships’ time: I think it is time either for the Government to accept the amendment, as I hope they will, or, if they fail to do so, for my noble friend Lord Dubs to divide the House, in which case we will strongly support him through the Lobby.

Brexit: Immigration

Baroness Hamwee Excerpts

Thursday 29th March 2018 Lords Chamber

Tabled by

[Baroness Hamwee]

To ask Her Majesty’s Government how they intend to take account of the findings of the Migration Advisory Committee’s report, EEA Workers in the UK Labour Market, published on 27 March, in their negotiations with the European Union before 29 March 2019.

European Union (Withdrawal) Bill

Baroness Hamwee Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Viscount Hailsham]

My Lords, I shall speak briefly to the three amendments in my name, Amendments 109, 134 and 188. These are intended as sunset clauses but, as I do not want them to be sunrise clauses, I intend to be extraordinarily brief.

Those of your Lordships who have been in Committee during debates on Clauses 7 to 9 will know that I am very unhappy about the process those clauses attract. For example, the powers within those clauses are very widely drawn, the scope is considerable, the regulations are made by secondary legislation with very limited scrutiny, both parliamentary and ministerial, and they are triggered by a test—the test of appropriateness—which I regard as wholly unsatisfactory. For all those reasons, my view is that the regulations made under the regulation-making powers should die two years after Brexit and should, if necessary, be replaced by primary legislation. That is my suggestion to the Committee, and I hope it commends itself to your Lordships. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have Amendments 111, 137 and 192 in this group and share the unhappiness that has just been described. Mine is a narrow but, I think, important point.

The thrust of most of the amendments in the group —not the noble Viscount’s—is about consultation and transparency. You do not have to spend long working in Parliament to realise that scrutiny very much depends on the input of stakeholders—I hate the term but I cannot think of a better one at this time of night. They assist us to understand how things work in practice, both with technicalities and wider issues. That is not to say that I do not have great admiration for parliamentary counsel and the lawyers working in the departments, who are most concerned with statutory instruments, but my amendments would require consultation on the regulations provided for by Clauses 7 to 9. This should all be a co-operative venture, with stakeholders contributing at an early stage, not least for the reason that the regulations are statutory instruments and not open to amendment, so you have to get it right from the very start.

I was a member for some time of the Secondary Legislation Scrutiny Committee, which received a lot of very valuable representations—lobbying, if you like. I suspect we will not hear comments in support of Amendment 228 in the name of the noble Lord, Lord Adonis, about the Cabinet Office code, but I support the application of the code to the regulations. We may well be told that of course the code will apply. I have to say that in my time on the committee, we undertook quite a lot of work on the application of the code in practice and were quite critical of the responses we received from the Cabinet Office. One of our criticisms was that when consultation was undertaken—which it was not always—on the statutory instruments we were considering, the Government did not publish the responses to the consultation before they published the statutory instrument, so the work was not as helpful as it should have been.

Other amendments in this group are more detailed. Mine is not very elegant. I am not proprietorial about it but I wanted to raise the subject because some provision is necessary and, if I may say so, appropriate. It is a step that is very easy to miss out and I hope we will not be told that all the regulations in question are simply about technicalities and that stakeholders would have nothing to add to the exercise. Practitioners in almost every area may see what is workable in proposals being put forward, as well as substantive points.

[Baroness Young of Old Scone (Lab)]

My Lords, I shall speak to Amendment 227A in my name, which is also supported by the noble Lords, Lord Lisvane, Lord Tyler and Lord Judd. The amendment is intended to be helpful to the Minister, although it is unlikely that he will regard anything as helpful at this time of night. Nevertheless, it is intended in the spirit of helpfulness to ensure that the statutory instruments that the Government are proposing turn out to be correct and effective. Many of the changes made by the statutory instruments will be technical and potentially uncontroversial but some will involve policy choices. The aim of my amendment is to ensure wider consultation on statutory instruments before they are formally laid.

The nature of the challenge is quite severe. There will be an awful lot of them—potentially 1,000. I have been looking primarily in the last year at the number that will be required in Defra alone—over 100—on environmental issues. They will need to come thick and fast, and in many cases they are being dealt with in departments by staff who have only recently been recruited. Having seen these departments shrink in times of austerity, lots of people are now being recruited, some of whom are old faithfuls but some of whom are rather new and probably not as well acquainted with the policy area as we would like.

So there is a risk of two things: one is cock-up, if noble Lords will pardon the unparliamentary language—things just going wrong because of the sheer volume and pace; and the other is conspiracy. A large number of the Defra SIs will be roll-ups of a whole variety of issues. I am being ignoble in suggesting that the Government might hide under a pile of harmless stuff the odd thing with a slight curveball in it, but increased transparency and consultation would help reassure people that no fast ones were being tried.

The noble Baroness, Lady Hamwee, pointed out—and it is inalienable—that the process of both the affirmative and the negative procedures means that once measures are formally laid there is very little room for manoeuvre, so it is important that this consultation happens in advance. I thank the noble Lord, Lord Callanan, for his letter of 20 February, following Second Reading. It provided more information but offered only that the Government would make efforts to publish a sample of statutory instruments in draft where appropriate. That rather misses the point, which is to let loose on these drafts expert eyes from across a variety of sectors of stakeholders to help the Government with that checking process to make sure that nothing has been missed, there has not been a cock-up and the policy intentions have not been perverted in any way. I hope the Minister will consider this and see it as a genuinely helpful proposal.

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[Baroness Young of Old Scone]

I am not sure that the evidence stacks up on that. I have been seeking clarification from Defra for over a year now on just a simple list of the issues that might be subject to statutory instrument, and I have been unable to get that from the department. Perhaps the Minister might like to prod departments to reflect the terms she just stated.

[Baroness Hamwee]

My Lords, I too asked for a list of necessary statutory instruments from the Home Office, and the Parliamentary Answer was that the work had not been done to calculate the number.

[Baroness Goldie]

I say to the noble Baroness, Lady Young of Old Scone, that it is a pleasure to be asked to do the prodding rather than be the recipient of the prodding, which has certainly been my sensory experience standing at this Dispatch Box. I understand her concerns and will certainly relay them to my noble friend Lord Gardiner.

Similarly, I will refer the point raised by the noble Baroness, Lady Hamwee, to my noble friend Lady Williams. I understand the concerns; there must be a degree of frustration. It may of course simply underpin the enormity of the challenge confronting departments, in that at this stage it is extremely difficult to try to map exactly what lies ahead. Some of it might be predictable but some of it is unknown and will depend on the negotiations. However, I undertake to do what I can to seek some assistance.

The requirement in the amendment of the noble Baroness, Lady Hamwee, for relevant stakeholders to be consulted on all the provisions contained within all statutory instruments made under Clauses 7, 8 and 9 goes, I believe, beyond what is reasonable in this instance and belies the nature of those instruments. I appreciate the concerns that we have heard throughout this debate about the potential breadth of the power—something that clearly concerns my noble friend Lord Hailsham—but I hope that the Committee will accept at the least that a great many instruments will be technical and minor, and will merely ensure flexibility, swiftness in dealing with identified defects and, of course, continuity of our legal framework.

A specific legal requirement to consult could also impact on our negotiations with the EU. It could inadvertently expose our position at an inappropriate moment if we were engaged in sensitive discussions about particular issues. Compulsory consultations would also impact on the tight timeline for Parliament to scrutinise instruments. The consultation process requires resources and time from government and stakeholders, and we want to focus the energies of those inside and outside government on the most important measures rather than have them occluded by the sheer volume of consultations on what might, at the end of the day, be very minor technical matters. That is the challenge that could arise under these amendments. I hope that the noble Baroness understands why the Government cannot accept her amendment, and I urge her not to press it.

--- Later in debate ---

[Baroness Hamwee]

Before the noble Baroness moves on to the other amendments, is she able to expand a little on the point about upsetting negotiations? We are talking about moving existing legislation over the break point into the future. I am quite puzzled by that part of her response.

[Baroness Goldie]

That may be part of what is involved but the other part might, as emerged in earlier discussions today, impact on subsequent matters that are germane to the negotiations and will therefore have to be taken into account in whatever legislative framework is proposed. It is not just a simple question of the bridge; there may be other aspects to be considered.

--- Later in debate ---

[Baroness Hamwee]

My Lords, on the code of practice that is the subject of the amendment of the noble Lord, Lord Adonis, my experience from the Secondary Legislation Scrutiny Committee is that it is honoured in the breach as well as in the observance.

[Baroness Goldie]

There was a universal welcome for the Government adopting as their principles much of what was proposed by the Secondary Legislation Scrutiny Committee. The committee has a locus if it considers that consultation has been inadequate.

I turn to the amendments tabled by my noble friend Lady Neville-Rolfe, starting with Amendment 249. She has an exceptional, perhaps encyclopaedic, understanding of the statutory instrument processes and is clearly aware of the historical issues that led to concerns regarding the quality of documents laid as part of this procedure. While I understand the concern that underpins her request to place in statute the responsibility to provide sample statutory instruments before both Houses, the Government do not believe that such a responsibility is proportionate. Wherever possible, and where negotiations will not be affected, we would hope to provide details of draft SIs from all sectors.

The noble Baroness’s proposed new paragraph in Amendment 250 seeks to address the procedures for conducting consultations. She makes a number of sensible suggestions as to what should be considered and included when conducting consultations—in fact, many of these are already being conducted or are currently being incorporated—but to require that a draft instrument should be published not less than 60 days before it is laid would place an undeliverable duty on departments, given the limited timeframe that is available and the need at times not to reveal expectations as to the outcome of negotiations while they are ongoing.

Similarly, Amendment 251 would place an impossible burden on the House and its time and does not allow for flexibility in the management of business. The new proposals for laying draft negative SIs with a sifting committee would mean that the Minister would not be able to give any indication as to when it was expected that the instrument would be debated. In these cases, if, as I hope, the Committee accepts the recommendation of the Government that the negative procedure is proportionate, the SI would proceed as a negative statutory instrument. This House has a well-established process for considering affirmative and, where desired, negative SIs, and we want to see this continue.

None of this is to refute that my noble friend has set out some very good suggestions for practice, but practice should not be placed in the Bill. Indeed, the noble Baroness, Lady Smith, had an interesting suggestion about listing SIs once known.

European Union (Notification of Withdrawal) Bill

Baroness Hamwee Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have tabled Amendment 25 on behalf of the Joint Committee on Human Rights, of which I am a member. It is also supported by the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Lawrence, who are also members, and the noble Lord, Lord Kerslake. Inevitably, I will speak a little to the other amendments in the group, but I assure noble Lords that I have crossed out quite a lot of the speech I arrived with.

Of course, I am aware of the statements made by Ministers, most recently the Home Secretary’s letter to noble Lords, but none of these amounts to an acknowledgement of rights—I stress rights. That is almost where we started, with the second speech from the noble Viscount, who referred to natural justice. The JCHR has reported largely on the basis of the European Convention on Human Rights. In the spirit of the committee’s very moderate amendment, I assure noble Lords that our amendment, unlike others in this group, does not amount to an attempt to delay or frustrate leaving the EU.

I am puzzled by the logic of the Government being committed to assurances, while at the same time saying that nothing can be settled now. The latter must call the former into question. Noble Lords have talked about how offensive it is to treat people as commodities, but even if it were appropriate, how useful would it be as a bargaining chip? Ministers are saying that we have their assurances that this issue is a priority. Does not that give us the worst of all worlds—a bargaining chip without any negotiating advantage—because we have acknowledged its priority? Have we downgraded other issues? I leave these questions hanging.

It is said that a unilateral arrangement makes no sense, but I put a different view to your Lordships. Even at the cold, unemotional level of negotiating tactics, I believe it does. As the noble Lord, Lord Anderson of Swansea, said, a good will gesture or a moral gesture can be a very effective negotiating tool in itself. I do not have other noble Lords’ impressive record of high-level negotiation, but I have done my share of all-night stints constructing some agreements. I have found that it can be effective.

We are putting the responsibility on other states by saying that they insist on no negotiation before notification, but there is no technical reason why there cannot be a unilateral position. Of course, UK citizens in other European states have the same rights—or, if you like, a mirror image of them—so the scope for negotiation may be a little limited. Given the age of the many UK citizens abroad, particularly those living in Spain, I cannot help thinking that if they return at the same time as we lose or send away so many people working in our health service, we will be shooting ourselves in both feet.

It is not the best reason, but there are also practical reasons for the JCHR’s amendment and others. If some such provisions are not embedded, the burden on the Home Office of dealing with large numbers of applicants seeking to establish their position, and on the courts called on to apply Article 8 of the convention, would be enormous. I do not want to start considering what would then be the logical step of deportation.

We have referred to morality as well as rights. A guarantee is simply the right thing to do. Although I am disciplining myself from repeating what other noble Lords have said about representations that have been made to us, I take this opportunity to thank the enormous numbers of people who have emailed us, very personally, individually and in a very heartfelt way. The noble Lord, Lord Howard, said that there are no new facts. I do not think he could argue that there is not an increasing weight of evidence.

There is one cohort I want to mention: people who are vulnerable to exploitation. They are perhaps not hugely competent, and are often in the agriculture, construction and care industries. There is evidence now, which the JCHR has heard, that unscrupulous employers are taking advantage of their readiness to believe it when they are told, “You are illegal”, when no such thing is true.

We have heard many times, “Don’t tell the other side your bottom line. Don’t put your cards on the table”. I think this card is on the table, so that argument falls away. This Chamber should demonstrate that it is with those who want their nation to be one which understands common humanity and, dare I say it, human rights.

[Lord Kerslake (CB)]

My Lords, I rise to speak in support of Amendment 25, to which I have added my name, and in general support of the amendments in this group. Like the noble Lord, Lord Tebbit, I declare my interests: as chair of King’s College Hospital, chair of Peabody and president of the Local Government Association—this may be the only point of similarity in our speeches. My views are of course my own and not those of the individual organisations.

I should start by saying that this is a difficult judgment for us to make and it will be one of many that we face over the coming years. Like other noble Lords, I have read very carefully the Home Secretary’s letter, much of which I sympathise with, and reflected on the issues overnight. Having reflected, I still come firmly down on the side of supporting an amendment to protect the rights of EU citizens in this country.

The arguments for this are both principled and deeply practical. The principled arguments have already been well made today, so I will not repeat them all. More than 3 million EU citizens have come to this country in good faith. Many have made it their home and, in doing so, contributed enormously to the good of this country. I doubt if there are very many Peers in this House or indeed many people in the country who would actively want them to leave. The only argument we have heard for not confirming their position now, put forward by the Home Secretary in her letter, is that it would weaken our hand in the negotiations on UK citizens in Europe. Whichever way you dress up that argument, whichever way you think about it, it is using the rights of EU citizens as a bargaining chip.

In my view, it is not even a very good bargaining chip, because it is perfectly clear to the Commission negotiators that we need them to stay as much as they wish to do so—if not more so. So our negotiating position amounts to saying, “Do as we wish or we will shoot our own foot off”. I think the EU negotiators will see through that.

My practical reason for supporting the amendment is that, for our own sakes, we need to end the uncertainty for EU citizens now. The Government have said that we can debate this issue at a later stage. They have said that they will seek to reach an early agreement on the matter with the EU. I have no doubt about their sincerity on this point, but the hard truth is that early resolution is not in their gift. In the meantime, the uncertainty creates risks for desperately needed skilled staff, with devastating consequences—let me give just three.

For the building of new homes, which I am passionate about, we know that something like a quarter of construction workers in London come from the EU. In respect of the effective operation of our hospitals, I know that King’s would simply not be able to function without the European doctors and nurses who work for us. For the delivery of social care, EU workers form a vital part of the residential and home care provider workforce. Without those skilled workers, it would simply be impossible to run these functions properly and it is not possible to replace such workers in the short term. It may be that they will continue to stay here, but the survey that we saw in the Guardian today on European doctors immediately puts that in doubt. It may be that early resolution with the EU is possible: I have to say, from my own conversations with those closer to the process, that I am doubtful of this.

In the end, the key question for me is this: given the potentially devastating consequences for all the things I hold dear—new homes, a functioning NHS and delivery of good quality care—do I think that this is a risk worth taking? I do not. Sometimes in life—in fact, very often in life—the right thing to do is to do the right thing. I hope that today we do the right thing.