European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Chidgey (LD)]

My Lords, I support Amendments 153 and 154—so eloquently introduced by the noble Lord, Lord Lisvane—particularly on the issue of providing Ministers with those broad-ranging Henry VIII powers. As the noble Lord pointed out, the range of the powers covered, includes repealing Acts of Parliament and statutory instruments, and extends to most areas of law—the whole caboodle, basically, will be under the control of Ministers. It really shows why these powers go to the heart of the sovereignty of Parliament. We have heard some amazing speeches today about the importance of retaining the integrity of Parliament. If we really want to take back control for Parliament, we have to concentrate on making sure that we do not give Ministers unlimited powers.

Noble Lords will know that I spend a lot of time working overseas and consequently it is quite uncommon for me to find myself discussing amendments to Bills going through the House. I am not here often enough to be so involved. However, in this House and the other place, I, like many other noble Lords, have escorted constituents, visiting parliamentarians and guests on tours of the Palace of Westminster. Like many other noble Lords, I found that invariably, one of the party will say how important it is to them to visit the mother of Parliaments, by which they mean the heart of democracy and the modern democratic process: the Westminster model where the Executive are accountable to Parliament through a transparent balance.

I spent well over a decade here, in the other place and in dozens of foreign locations working with parliamentarians in or from developing countries. I worked with counterparts, often in the process of discovering the power of parliaments to hold their Executives to account and what transparency and accountability in a parliamentary process should mean. As we debate this Brexit Bill, the world is watching. The nations of the Commonwealth are watching. Only this morning, a group of Kenyan MPs on a Select Committee in their Parliament came to have coffee with me to talk about what Brexit would mean for them as well as for us.

These amendments help to ensure that, in passing this Bill, Henry VIII powers to bypass parliamentary scrutiny are not introduced and the principles of transparency and democracy, on which this mother of Parliaments was founded—and is therefore admired and imitated throughout the world—are protected.

Another issue that comes to mind straightaway is that we are on the verge of holding a Commonwealth Heads of Government meeting in London, for the first time in around 20 years. The United Kingdom Parliament will be fundamental to that process. After that finishes in a week or so, the United Kingdom will become the chair in office of the Commonwealth for the next two years. It will be a tremendous opportunity for us to reinforce—perhaps to absorb completely into the Commonwealth process—the principles and ideals on which we believe our democracy is founded. The world is watching the way we deal with Brexit.

Finally, the term “mother of Parliaments” is often misapplied. Many noble Lords will know that it was first coined by John Bright MP in the 19th century during his fight for the repeal of the corn laws, which has already been mentioned today. One of the great orators of his day, Bright was referring to England and its people as the mother of Parliaments, not Westminster. If we truly want to take back control, we must ensure that the power of Parliament remains in the hands of the people’s representatives: their MPs, not Ministers. I confirm my support for these amendments.

[Baroness Whitaker (Lab)]

My Lords, I completely agree with what the noble Lord, Lord Chidgey, just said. Noble Lords might be forgiven for thinking that in the exhaustive debate on the previous group of amendments the cause of democracy was well and truly vindicated. However, the defects these amendments seek to rectify are just as much of an onslaught on democracy, for the reasons so well set out by the noble Lord, Lord Lisvane, and the noble Baroness, Lady Smith of Newnham. I therefore hope that the Government will take them into account in a total redraft of Clause 9.

[Lord Mackay of Clashfern (Con)]

My Lords, first, I hope that “appropriate” will disappear in any event, and that it will be replaced with “necessary”. This clause appears to be drafted especially to deal with a situation where, once the withdrawal Bill is passed, a number of important things have to be done before exit day. I hope that the House of Commons will have the opportunity to consider these. The reference here is quite clearly to something that is required in implementing the withdrawal agreement. We have only to listen to the amendments that were dealt with this morning to know the tremendous complexity that this withdrawal Bill is bound to have—I only hope that it will have it and that we will have an agreement that will be incorporated in a withdrawal agreement Bill, which will deal with these complications. However, if they are dealt with, it is quite obvious that quite a number of things will have to be dealt with speedily that will be brought into effect on exit day. For example, where the authority controlling a particular line of business is no longer effective because of the withdrawal agreement, it may be necessary, to preserve that, to have some form of regulation that sets up an alternative, so that there is a control; for example, with regard to the things that were mentioned this morning, food safety.

It is therefore possible that in some situations the regulations will require modification of existing Acts of Parliament. The substance of this clause is therefore of importance, and we may have to consider it in a bit more detail. I hope that the Minister, when she comes to reply, will be able to give us some examples of the kind of thing that can happen. However, it would be dangerous not to make provision in case that kind of thing happens. The withdrawal agreement Bill will be complicated enough, so if we can make some preparation for it, that would be of benefit.

European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

Committee: 7th sitting (Hansard - continued): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I have added my name to this amendment. The noble Lord, Lord Bassam, spoke powerfully about a particular girl from Syria but she is typical of children across Europe. I went to Calais in May with Fiona Mactaggart, then an MP, and we wrote a report about the situation in Calais and Dunkirk, but it is also true in Italy and in Greece. Of those children who have come across Europe without their families, there is a group who have rights under EU law. Those are the children who can apply under what is known as Dublin III. This amendment asks that the relatively small number of children who have actually succeeded in coming to this country should not be cut off when Brexit occurs. I accept Brexit, but what I ask, along with fellow Members who have put their names to this amendment, is that the Minister who answers on behalf of the Government recognises that Brexit should not prevent the existing rights of children. It is not just a moral issue; it is a legal issue: they currently have rights and it would in my view be shocking if those rights were got rid of because we leave the EU.

[Baroness Whitaker (Lab)]

My Lords, at this very late hour I say that I agree with everything that other noble Lords have said and add that our record has not been what it should be in implementing our obligations regarding this most deserving of humanitarian problems. We should improve it, not curtail it, so I support these very moderate amendments.

[Baroness Stroud (Con)]

My Lords, I rise to speak to this amendment, moved by the noble Lord, Lord Dubs. Our exit from the European Union presents us with a unique opportunity to define, in our own terms, the country we want to be. This nation is and always has been generous and open-minded towards refugees and has offered a home in times of trouble. From the Huguenots to the Belgians and Jewish refugees, we have a strong tradition of welcoming those who seek shelter. As a child, I can remember my own mother working as a nurse to welcome the Ugandan Asian refugees, and then later the Vietnamese boat people. This seemed only natural to me, given that my own father had been evacuated as a child to Canada during the war. This tradition is something which I hope, regardless of one’s views on Brexit or the European Union, we can all agree on.

In the period January 2016 to September 2017, the UK welcomed a total of 9,897 refugees, approximately half of whom were female and half were children. We can and we should do more, and we should seek to keep open and available every channel by which people are able to safely seek asylum. Dublin III is one of the ways in which respect for family life and unaccompanied minors’ best interests are kept at the heart of the asylum process. For some 300,000 unaccompanied child refugees, the risks of trafficking and forced prostitution or forced labour are extremely high. We know that in the Mediterranean, more than 75% of the 1,600 14 to 16 year-olds arriving in Italy reported being held against their will or forced to work. This staggering statistic is absolutely why we should be working to ensure that there are accessible, legal routes such as Dublin III, which allow children to apply for asylum safely from the country they are in, and not be forced to take dangerous journeys to join their families.

For children and adults fleeing conflict, the best place for them to be is with family members. This offers the best possible chance for them to thrive and rebuild their lives post trauma. The co-operation that Dublin III offers aids this but, as we all know, the Dublin conventions are only a small part of the story, and while the co-operation should remain, it is one strand of a much wider issue.

From the Calais operation, just 29 of the 769 children who were transferred to the UK came from the Dublin regulation route, and in 2016 just 355 people were transferred under this route. To date, the UK has taken in 10,538 refugees from Syria—just over half of the number we committed to resettle by 2020. We have so far welcomed around 220 children under Section 67 of the Immigration Act, which my noble friend Lord Dubs fought so hard to obtain: less than 1/10th of the original number committed to. Going forward, is this the sort of country we want to be?

Brexit is an opportunity to re-evaluate our priorities as a country and refocus on the country we want to be. Being an open nation with a generous welcome for those in need of our shelter should be a key part of that. I understand the limitations of Dublin III. But I call on my noble friend the Minister to clarify and confirm in this Committee that, post March 2019, the Government’s new and independent approach to refugees would guarantee that those who benefited under the old system would still benefit under the new, and that no restriction would be put in place preventing those in need from being reunited with their families.

European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

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

[Baroness Whitaker (Lab)]

With some timidity, may I offer a cruder and less specialised perspective, somewhat along the lines of the noble Lord, Lord Tyler? Taxation and mandatory fees and charges are surely, in principle, cardinal to the social contract and the liberty of the subject—that is, the subject cedes liberty as part of a democratic deal. In the past when monarchs have attempted to impose taxes, Parliament has continually rebelled. It is Parliament’s job to decide taxation, fees and charges, through primary legislation. I deeply support these amendments.

[Viscount Hailsham]

My Lords, I support the amendments in this group, most notably Amendment 86, the lead amendment. The first thing to perhaps acknowledge is how wide the power is in Clause 7. I acknowledge that the Minister will make this point. The power proposed under Amendment 86 would be governed by the overarching provisions of Clause 7, but it is also fair to point out that Clause 7 has a very wide scope. If one looks at Clause 7(3), one sees that the Minister has a power to enlarge the interpretation of the legislation in question.

The second point is that if one looks at paragraph 2 of Schedule 7, one finds that a fee—an important word in this context—imposed by a public authority can be created only by the affirmative procedure. What the Committee needs to address, however, is the distinction between a fee and a charge. The noble Lord, Lord Turnbull, suggested a difference, which I think was that a charge involves a surplus, so that perhaps it should be treated as taxation. But I am not sure that definition is recognised by law.

European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

Wednesday 7th March 2018 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I rise briefly to speak in favour of these amendments. I preface my remarks by saying that I agree absolutely with my noble friend Lady Lister of Burtersett. Human rights, fundamental freedoms and civil liberties define a country and its approach to civilisation. I remember 30 years ago looking on in horror as discrimination was visited on lesbians, gay men and bisexuals in this country by the then Conservative Government in Section 28 of the Local Government Act. That should remind us that there is never a continuous progressive line on equalities and human rights, and that we need to reinforce the protections that we have.

It is essential to guard against the excessive transfer of power from Parliament to the Executive and to ensure that any changes to fundamental rights and freedoms are subject to full parliamentary scrutiny. I believe that is a matter of constitutional principle, as I have said on many occasions in your Lordships’ House and it bears repetition.

New scrutiny procedures introduced in the other place do not address this concern. They provide a mechanism, in the form of a sifting committee, to recommend—I emphasise “to recommend”—that the affirmative scrutiny procedure be used. I look forward to the Minister’s confirmation that such a recommendation does not have to be accepted by the Minister. Furthermore, stronger safeguards are required in the Bill to exclude changes to equality and human rights from the scope of these delegated powers.

I turn to Amendment 70A, having dealt with the principles of Amendments 161, 259 and the others in this group. I congratulate the noble and learned Lord, Lord Wallace of Tankerness, on the way he introduced it, and the noble Lord, Lord Low, and my noble friend Lady Lister. Amendment 70A would introduce a new clause to ensure that the rights to equality presently enjoyed in accordance with EU law are enshrined in domestic law after the UK leaves the EU. Therefore, there is arguably no reason why the amendment should not be accepted. Indeed, for the Government to deliver on their commitment to non-regression on these rights, the UK needs to replace the EU’s equality safety net, referred to by the noble and learned Lord, with our own domestic right to equality. Amendment 70A would achieve this by setting a standard that all individuals are equal before the law and have a right not to be discriminated against by a public authority. For these reasons and many others, particularly the lessons of history, I support the amendment and others in the group.

[Baroness Whitaker (Lab)]

My Lords, I add my support to this group of amendments for all the reasons so eloquently set out by noble Lords. It would indeed be a retrograde step if the Government did not take advantage of these amendments to provide safeguards for our citizens.

[Lord Judd]

My Lords, I hope we are not going to end up with a minimalist position whereby if there is anything in which we are found to be lagging behind Europe, it has to be incorporated in the arrangements being made for the future. I agree totally with those who said that the kind of Britain I want to leave to my children and grandchildren is one that is a beacon for the principles of human rights and equality, in which we are seen to be leaders in the world. From that standpoint, I hope we will take this opportunity to make sure that we are making the necessary arrangements to ensure this.

European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, my name is on some of these amendments. I will be extremely brief. We are now at the core of the Bill, and at the core of how the Government respond to it. I cannot recall reading two such critical reports from committees of this House as the two we have had on these clauses— for example the suggestion that Clause 9 is wholly unacceptable and the suggestion that Clause 7 leaves very considerable uncertainty, both of which are from the Delegated Powers Committee. I therefore ask the Minister to offer us the prospect that the Government will come back on Report with their own recognition of the strength of feeling in this House. Without question, the Government will lose heavily on this the first time it is tested, and quite possibly again after it has gone back to the other place if the Commons sustains it.

We are in a position at which we need from the Government some reassurance on these constitutional issues, as well as these issues of trust, as they put through a Bill with a huge range of flexibility. We need reassurance on the Government’s future intentions, as their future intentions on much of this are still not entirely clear. I simply ask the Minister to be generous and to stretch his freedom of action as far as he can in the way he responds.

[Baroness Whitaker (Lab)]

My Lords, the noble Lord, Lord Lang, pointed out that we are a bit thin on the ground for such an important set of amendments, but the Minister should know that there is behind us an army. I have had more representations on Clause 7 than on any other part of the Bill—representations from national organisations, human rights organisations, advocacy organisations, legal organisations, professional organisations, and from individuals. There is very widespread civic concern over these clauses, and the Government should heed it and accept these amendments, which have such widespread support also in your Lordships’ House.

[Lord Mackay of Clashfern (Con)]

My Lords, the existence of these powers in the Bill has created an apprehension in a lot of people that the Government are proposing to use the powers in some way to undermine something that is valuable to them. It is therefore important—apart altogether from the argument that examines the detail—that we examine this carefully. The noble Lord, Lord Wilson of Dinton—with his background of great success as a civil servant, no doubt contributed to by his early experience as a lawyer—has moved the amendment in a way that has made it extremely clear. It is quite clear to me that necessity is a better test on which to leave these powers than the discretionary test of “appropriate”. It is not absolutely right that discretion is not subject to judicial review, but at least an objective test is certainly more likely to lead to successful judicial review if it is transgressed.

We have to remember the huge task involved in trying to put these two systems together; the European system, which has been here for 45 years, has been working alongside our system and kept separate from it over all that time. That is by no means an easy task. Indeed, what we already discussed with regard to Clauses 2 and 3 illustrate that. It is difficult and time consuming, and we must ensure that the solutions we suggest to the Government are practical and will enable this to be done in a reasonable time so that the statute book can be right on Brexit day.

I anticipate that the test of necessity will be an easier one to apply for those entrusted with the power than the test of what is appropriate. The latter involves an element of judgment, which is not always easy to exercise; whereas if it is obvious that these two bits do not fit together, it is necessary to do something about it. As the noble Lord, Lord Wilson, said, it is not necessary to circumscribe the solution. The argument that necessity suggests not only that the amendment is required but also what particular amendment is required stretches the matter a little far. So long as it is necessary to do it, that is a sufficient test for our purpose, and then it is for the Minister to do his best to sew these two pieces together.

I am somewhat alarmed at the survey by the noble Lord, Lord Wilson, of the people entitled to use this power, and the Minister may well have something to say about that. However, there is a lot of work to do, and we do not want to overwork the Ministers with necessary adjustments when they ought to be doing something else. There is certainly plenty to do between now and Brexit.

In addition, it has been said that this is surrendering the power of Parliament to the Executive. To an extent that is true, but Parliament retains a veto in respect of every single regulation, either by a negative or an affirmative resolution. It is true that we do not want to have thousands of these if we can possibly avoid it, apart from anything else. But there is an element of control there. How practical that would be is, I think, doubtful. There is an urgent need now to circumscribe these powers so that they work properly and effectively but not excessively. As I said, a lot of people have worries about human rights, equality rights and a whole lot of other rights. Sometimes people have spoken in conversation or in observations to the press or whatever, which does not represent the Government’s policy. This helps to inflame the idea that the Government are using these powers to take away all that has been so dearly won. I do not think that is true, but we should try to remove the possibility that this idea can be represented.

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In fact, the Government seem to have portrayed it as some kind of limitation in itself, but I do not read subsection (3) like that. Having purported to restrict Clause 7(1) somewhat, in response to the criticisms in the other place, the Government then attempted to put back the greater latitude in subsection (3)—that Ministers can regulate if there is a “similar kind” of deficiency. What on earth is “similar”? Of course, that begs a big question, but it seems to me that this was not properly examined in the other place. It just got slipped in as part of a response to concerns but it actually adds to the concerns about ministerial powers. It certainly does not remove them but inserts a new cause of worry. So I fully support Amendment 80, which would delete subsection (3), because subsection (3) undoes the good work that was done in a modest tightening-up of Clause 7(1).

[Baroness Whitaker]

My Lords, I support my noble friend’s Amendment 82. Yet again it is the issue of using secondary legislation under Clause 7 to make changes, in this case to the Equality Act 2010 or to subordinate legislation made under that Act, or to reduce rights or remedies under EU retained law,

“in comparison with the position immediately before exit day”.

Your Lordships’ Committee made its views on the abuse of Clause 7 abundantly clear during the earlier debate. Surely the same reasoning applies.

[Lord Beith]

My Lords, I follow my noble friend Lady Ludford in querying what is intended by Clause 7(3) and hope that the Minister will be able to draw on his limited stock of examples to provide me with one—indeed, with something that fulfils this definition:

“There is also a deficiency in retained EU law where the Minister considers that there is … anything in retained EU law which is of a similar kind to any deficiency which falls within subsection (2)”.


In that case, why does it not fall within subsection (2)? Can the Minister give me an example of something which subsection (3)(a) would provide for but which subsection (2) has not provided for?

--- Later in debate ---

[Baroness Altmann (Con)]

My Lords, I have added my name to these amendments. I believe that public bodies should be established by primary legislation. Parliament must have the opportunity to properly scrutinise and access the expenditure associated with trying to replicate bodies to which we already belong. The Bill, and in particular Clause 7, contains elements that are frightening to those of us who believe in parliamentary democracy. Handing such powers to the Executive is a gross dereliction of duty. I encourage my noble friend to urgently ask his department to reconsider the Government’s current intention to leave so many excellent EU agencies and try to recreate our own versions.

[Baroness Whitaker]

My Lords, it must be inherently undemocratic for bodies that have significant obligations, for instance under the Equality Act or the Human Rights Act, not to be set up with the full parliamentary scrutiny of primary legislation, so I support these amendments.