European Union (Withdrawal) Bill

Debate between Baroness Kennedy of Shaws and Baroness Doocey

Wednesday 14th March 2018 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, Amendment 161A is tabled in my name and leads this group of amendments. I felt it was right that my noble friend Lord Hain opened the debate because he roamed much more widely that I intend to. Noble Lords will see that Amendment 161A looks at the common travel area and how we might proceed in future with regard to it.

I want to remind the Committee of the background to the common travel area. It is largely a passport-free zone between the UK and Ireland and the Isle of Man and the Channel Islands, which are not in the EU. Save for a decade-long period of suspension around World War II, a form of common travel area has existed since partition and was maintained throughout the Troubles. The arrangement is complex and its existence is already recognised in the EU context. It is a changing context and is not copper-fastened, but rather left to politics, convention and legislative reference.

In the United Kingdom, Section 1(3) of the Immigration Act 1971 provides that arrival in and departure from the UK from or to elsewhere in the common travel area cannot be subject to passport or border control. Although the common travel area predates and is separate to EU freedom of movement, a post-Brexit scenario presents novel challenges as well as an opportunity for us to rethink and codify the common travel area on a more effective and principled basis.

I wanted to raise the fact that, at the moment, there really seems very little that is solid around the movement of people. I am talking here not about the movement of trading goods but about the movement of people. As we know, the Government have a policy to create a hostile environment for migrants who end up with irregular status. On current plans, that would in future include migrants from elsewhere in the European Union, with the probable exception of Irish citizens. The question then turns to how the Government will enforce their desire for such significantly increased migration control while maintaining an open border. If the Government are sincere in saying they do not want a hard border, where will the checking of papers take place and how will it be done? It seems to me and to many that this has been largely overlooked in detailed discussions so far. The position paper is limited to setting out that future UK immigration arrangements will maintain the common travel area free from “routine” border controls.

It looks like an indication that the Government may be considering reviving plans for selective mobile checks on people not perceived to be British or Irish citizens. I want to just think about that. Not that long ago in this House, in 2009, there was a moment when it looked as though the common travel area was endangered. The Government at that time intended having “ad hoc” checks on the land border, because of concerns about illegal immigration, that would target non-British and non-Irish citizens. The suggestion was that there should be passport checks between Northern Ireland and Great Britain. The policy was defeated in this House by an amendment tabled by the noble Lord, Lord Glentoran, following concerns raised by Peers in debate and by the Northern Ireland Human Rights Commission about both racial profiling and internal immigration controls within the United Kingdom. There was very real concern about it.

The proposal envisaged non-common travel area nationals—persons who were neither Irish nor British citizens—having to carry identity documents to cross the land border, with British and Irish citizens not having to do so. But of course unionists in Northern Ireland were very concerned about what this would mean for them. Were they going to have to prove their position as they travelled within their own nation? This prompted the clear question as to the basis on which examining officers would distinguish between the two groups of citizens—people who were entitled to travel and those who were not. In a post-Brexit context, under current plans, there would also be the question of distinguishing between EU citizens who had acquired rights by virtue of residence prior to Brexit, and those EU nationals arriving subsequently who may remain non-visa nationals but will be subject to restrictions. How would this be done? I have been drawing on research by lawyers from both Queen’s University and the University of Ulster, as well as human rights organisations in Northern Ireland, who are concerned about this.

As for potential solutions in a post-Brexit context which would avoid the need for a hard border and the risks of widespread profiling—pulling out people who they think look like foreigners—you would have to make some special arrangement. Members of the negotiation team would have to explore models that would somehow create special circumstances to deal with the Northern Ireland situation. It may have to be that we talk about continued EU freedom of movement into Northern Ireland in an agreement with the European Union to ensure that British citizens in Northern Ireland continue to enjoy equivalent rights to Irish citizens in the jurisdiction—a core principle, as we have heard, of the Belfast/Good Friday agreement.

I tabled the amendment, and raise these issues, to tease this out. To some extent, it flies in the face of some of the policing matters that the noble Lord, Lord Patten, who I see in his place, sought to put in place under the bilateral treaty agreement to avoid problems of this kind in policing and border control. It would not be compatible with the treaty that we have entered into with the Good Friday agreement to require a dual Irish-British citizen, or someone identifying as British, to rely on their British citizenship alone to access entitlements or equal treatment in Northern Ireland. It just comes back to this question: how is it to be done? Are we to have mobile units that will stop people?

Recently there was rather a high-profile litigation case against the Home Office, supported by the equality commission, involving a British woman who was stopped at Belfast City Airport by an immigration officer. The victim, who was not even a passenger but was dropping off a relative at the airport, gave her account of events, which was upheld. She was told by the immigration officer that she had been singled out as she,

“looked foreign and obviously not from here”.

She was black. It is not an isolated case, so there are concerns about that, at one end, but also about what it will mean across the board. How is this to be done? We look forward to hearing, in this testing set of amendments, how this is to be done in a way that will not involve having controls, even mobile ones, that are discriminatory.

[Baroness Doocey (LD)]

My Lords, my reason for putting down Amendment 187A was to ensure that if we are to leave the EU, we do so in a way that does least damage to all the communities that we, as parliamentarians, represent.

Northern Ireland is in some ways a microcosm of the challenges that the UK faces in pursuing Brexit. But Northern Ireland adds further complexities, with delicate issues stemming from the Troubles and the peace process. These have been added to by the current political difficulties following the collapse of the Executive some 15 months ago. Since the signing of the Good Friday agreement nearly 20 years ago, there has been an enormous change in attitudes in Ireland that could not even have been imagined when I was a young girl growing up in Dublin. I am one of many of my generation who grew up in the Republic and who thought of the north as almost a foreign country. When I was a child, I had an uncle who manufactured children’s clothing. When he won a contract to make school uniforms in Northern Ireland, the family greeted this news with as much excitement and awe as if he had been invited to China to make uniforms. That was how alien Northern Ireland was to us: a mere 60 miles away—the same distance as London to Oxford—but light years apart.

Contrast that reaction to how young people today see the border—or rather, do not see it at all: people who have reached adulthood without ever having to experience, first-hand, stops and checks as they travel from one part of Ireland to the other. I did not even visit Northern Ireland until I was living in London and had to go to Belfast on business. I am not sure what I expected, but I was completely bowled over by how absolutely beautiful it was and the amazing people who live there. Today, 35,000 people cross the border every day for work, leisure, education and pleasure. No borders should be erected that will undo this progress.

The purpose of the amendment is to put into concrete legal terms what the Prime Minister and her Government are already committed to. The joint report on phase one of the Brexit negotiations that was published last December included a commitment to no physical border on the island of Ireland as a result of the Brexit vote, and the Prime Minister repeated that promise earlier this month. That commitment is clear and unambiguous, but how is it to be achieved?