Safety of Rwanda (Asylum and Immigration) Bill

Lord Deben Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I support all the amendments in this group and will be sorry if, as I suspect may be the case, none of them is put to the vote.

I spoke in Committee on the status of interim measures of the European Court in international law. I will not repeat any of that now, although I remind the Minister, as I did informally a moment ago, of the exchange we had at the end of that debate, at about 10.30 pm on 19 February. I asked him whether he agreed with me that if a Minister decided not to comply with an interim measure, as Clause 5 permits, this would place the United Kingdom in breach of its international obligations. He gave me no answer—and frankly accepted that he was giving me no answer—but did undertake to write to me. The Minister did tell me a moment ago that such a letter has been sent, but I am afraid that, despite his best efforts, it has not yet reached me. Will he please be kind enough to read the relevant passage when he answers this debate?

The European Court of Human Rights takes one view, which is generally accepted to be binding on contracting states—including our own—by Article 32 of the ECHR. In brief reference to the point raised by the noble Lord, Lord Lilley—I thank him for the courtesy he extended to me earlier in today’s debates—the binding effect of interim measures rulings was clearly accepted in this case by the French Conseil d’Etat, in its judgment of 7 December 2023. I know the noble Lord is very conversant with the French language; if he reads paragraph 5 of that judgment, he will be left in no doubt as to the relevant position.

If, as the noble Lord, Lord Jackson, suggested, the French Government are flouting both the interim measures of the European Court of Human Rights and the judgment of their own highest court, shame on the French Government. Shame on any Government who behave like this. We are used to seeing the Russian Government, the former Government in Poland, behave like this, and we have to make up our mind which camp we are in. That is why it is so important that we understand what the Government’s position is before we vote on the Bill. Is the purpose of Article 5 to permit Ministers to involve this country in breaches of international law, or is it not? I hope that this time, we will have some clarity from the Front Bench.

[Lord Deben (Con)]

My Lords, as the House will know, I tend not to want lawyers to have it all their own way when they are dealing with legal issues, but I rise because it seems to me that this is an occasion to point to the fundamental problem the Bill presents. It asks Britain, which is absolutely dependent on international law, as we found in our debate yesterday, to present a situation which, at its very best, looks like flouting international law. The previous speech, by my fellow Ipswichian, is germane to this. I want to bring it back to this key issue. Those who objected to the European Union and our membership really cannot come to this House and say, “Because the French are doing it, we ought to copy them”. That seems to me to be a very curious position.

This brings us to a very crucial issue about this House. Earlier on, the noble Lord, Lord Coaker, rightly said that the Government have addressed the world to say that whatever we say, they have no intention of changing the Bill. That is unacceptable. It is an insult to the House, and it is constitutionally improper.

However, I say to the noble Lord, Lord Coaker, that the Opposition also have a responsibility in this. We all know that, so far, the Opposition are not prepared to pick one of these amendments, which are about our acceptance of international law, and to press it to the point at which the Government have to give way or lose the Bill. I say to the Opposition that the responsibility of opposition is as great as the responsibility of government. In the hands of the Opposition is the ability to make this Government turn the Bill into one that conforms with international law. If they do not do that, they will have failed in their duty and in the way they treat this House.

As the Opposition may become the Government, this, in my view, undermines their position, because the world knows why they do not want to do it: for electoral reasons. I find that unacceptable in the party I support; I find it just as unacceptable in the party with which I disagree.

[Lord German (LD)]

My Lords, on that last remark, I absolutely agree with the noble Lord, Lord Deben. That is why, of course, we established our position clearly on Second Reading. We did it as a matter of principle and we stand by that principle. We will keep by that principle, and we will fight tooth and nail to ensure that the Bill, as bad as it really is, is put right.

I want to say how much I agree with the noble and learned Lord, Lord Hope. I wish he would push this amendment to a vote, because we would certainly support it. I always like encouraging people to do things they are perhaps slightly resistant to doing. Essentially, this is a matter of great importance to us. We are part of this court. We helped to set it up, and the judges within it are British judges. We know very well that this is at the root of the issue. Yesterday, we were told that it is the backstop—

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[Lord Deben (Con)]

I point out that the noble Lord did not quote me correctly. I did not say that he should kill the Bill; I said that the Opposition were in a position to insist that the Government change the Bill so that it is in accordance with international law. That would not kill the Bill. I do not want to kill it; I want to improve it. The point that I make to the noble Lord is simply this: if he is saying that there is no situation in which the constitution of this country cannot be upheld by this House, he is saying something entirely novel. The fact is that this House has always seen itself as being the protector of the constitution—and what more important protection is there than to insist that the Government obey international law?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as I said, Amendment 37 puts the ball in the court of the Attorney-General; it is for her to make the decision and recommendation to the Government about the propriety of the interim measures. This is the most modest of the amendments in this group—and I do not know whether other noble Lords will be pressing their amendments.

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[Lord German (LD)]

My Lords, if there is no other willing speaker, I say to the House that, set alongside breaching international obligations, outing the jurisdiction of the courts, breaching human rights, and being morally unsupportable, these amendments also show the Bill as unworkable and extremely costly to the taxpayer.

I say to the noble Lord, Lord Hodgson, that if we need to know how many, what the consequence will be and how much it will cost, now is the time that we need to know. There is no point finding out after the Bill. It has been extremely difficult to get hold of accurate information on the costs, and I am grateful to the NAO, because it has at least given the published figures some context—but the numbers are tricky.

The trouble with the information we have, of course, is that the Illegal Migration Act itself has created a huge number of people—thousands—who are now in limbo and whose cases have been left because of the way that that Act was constructed. They are unable to have their asylum cases considered, unable to get on with their lives, and unable to work and use their skills and talents, and instead have to live in substandard conditions with no clarity on their fate.

As at December 2023, there are two sets of figures derived from the published figures: there are either 100,000 people awaiting an initial asylum decision, or 128,000 if you include dependants. Some 56% of those made their applications on or after 7 March 2023, when the Illegal Migration Bill was introduced to Parliament. A significant number of these claims will therefore have been deemed inadmissible under that Act, which means their applications are making no progress. Could the Minister tell us how many people are in that limbo at the moment? Given that we understand that the estimates for numbers that can be removed to Rwanda range from 100 to 150 to a couple of hundred, we need a proper policy explanation from the Government as to how they will deal with these asylum seekers. If you divide the number that is possible into the total number of people waiting, this could go on for years and years, and we will still have these people in the country. The Government cannot bury their heads in the sand. These are vulnerable individuals, and we have a responsibility to treat them well. It is just not acceptable to hold all these people in limbo.

On costs, I am grateful to the noble Lord, Lord Carlile, because I have the figures that the National Audit Office has produced. In detail, there is money to be paid going on, and there is money already being paid, but the essential conclusion of the National Audit Office—I do not think it has a political interest in this, though it certainly has a financial interest—is that the cost will be between £1.9 million and £2 million per person. Add that to the list: we have people in limbo, extraordinary costs, and something in the Bill that is basically inhumane. I therefore support these amendments, because they take us some direction to finding out the real truth.

[Lord Deben (Con)]

My Lords, I support the noble Lord, Lord Hodgson, in his comments. The issues we should be concerned about are the ones that we have just been talking about. They are the real issues—the ones that really matter. We can all make party-political and cross-party references to the amount of money, and I must say that this is not the way I would spend £1.9 million on an individual. I am not known for total support for the Government on everything, but I do not think we really need to go into this. We know a great deal about it. The Government will not improve or lessen the effect of this Bill by telling us these figures. This is something I am perfectly prepared not to support, because I do not think it is important enough, and I do not want this House to be led astray from the key issues.

Throughout this debate, I have said that the thing I am interested in, because of my concern around climate change, is that I want us to clearly support international law. We have no hope of saving the planet, let alone anything else, unless we support international law. Therefore, if this is put to a vote, I shall support the Government, because this is an unnecessary addition, and I want the Government to concentrate on the key issue—that they are undermining our international reputation in a way that is unacceptable, damaging and dangerous. The fact that the Government are also spending a lot of money which does not look as if it will be useful is so much more minor than that, but I will support it.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for introducing these amendments in such fine style. I thank him for acknowledging the Home Secretary’s remarks, but I am sure he would acknowledge that I, my noble and learned friend, and my noble friends on the Front Bench agree with him about respecting the constitutional importance of your Lordships’ House. In answer to the question about the responses to those reports, they are imminent—I promise to fire up the much-vaunted carrier pigeon on that one.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Deben Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I rise very briefly on that point to support the noble Baroness. We have heard in previous groups the concerns of the noble Lords, Lord Hannay and Lord Kerr, who is not in his place, and other noble Lords, that the debates which we are having in this House are being keenly viewed outside this House and very keenly in the United Nations Human Rights Council.

It is a depressing fact today that the top news story on the UN global news website is commentary on this Bill going through this Parliament. The UN Human Rights Council, which will be gathering next week, will be discussing the atrocities in Sudan and the Israel-Gaza conflict. It is a time of great turmoil and danger for many people, but the fact that the UN Commissioner for Human Rights, Volker Türk, today in the preparatory meetings of the council singled out the United Kingdom and the safety of Rwanda Bill as an illustration of the undermining of basic principles of the rule of law and of the risk of delivering a serious blow to human rights is deeply troubling.

The statement referred to by the noble Baroness, Lady Lister, which was made today, said:

“Settling questions of disputed fact—questions with enormous human rights consequences—is what the courts do, and which the UK courts have a proven track record of doing thoroughly and comprehensively. It should be for the courts to decide whether the measures taken by the Government since the Supreme Court’s ruling on risks in Rwanda are enough”.


The statement continued:

“You cannot legislate facts out of existence”.


I appeal to Ministers considering this Bill. Many in the world are watching us. We have led in these areas. We should be leading the discussions in the Human Rights Council about global abuses of the rule of law and human rights. We should not be being singled out for abusing them ourselves.

[Lord Deben (Con)]

My Lords, I rise to support these amendments for a very fundamental reason. The separation of powers is crucial for the freedom of all our people and I find it very distressing that the Government have not understood how deeply offensive this element of these proposals is.

It is deeply offensive simply because it purports to say that something is true which is not true. It suggests that the sovereignty of Parliament extends to the decision on whether something is or is not. That is a decision which has always been the purview of the courts, simply because the courts have a structure that enables them to listen to the evidence on all sides and make a decision at the end.

I fear that the Government have presented this because it is inconvenient that the courts should take a part in it. The price of liberty is inconvenience. You cannot be a free nation unless you accept that there are processes that are embarrassing to Governments, to Oppositions, to people of standing, to people who have got other views. You have to accept that it is the price we pay. This Government are suggesting that, because they have got to get something through before the end of the year because they said they would, they can claim that inconvenience is something they will not accept.

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[Lord Stewart of Dirleton (Con)]

I did not. I said that just because safeguards have not yet been fully put in place, it does not mean, as a result, that Rwanda cannot be deemed safe.

[Lord Deben (Con)]

If Rwanda is not safe now, but it will be safe, then the period between now and the point at which it will be safe must be one in which somebody could argue that it is not safe, otherwise it does not mean anything. My noble and learned friend has himself said that it is not safe now but will become safe. I am not one who thinks that we cannot have an extraterritorial arrangement, but I do not understand the logic that says that it is not safe now, it will be safe, but you cannot appeal to the courts in between those times otherwise it is just academic. This is a use of “academic” that I do not really understand.

[Lord Stewart of Dirleton (Con)]

I reiterate my previous answer: the fact that further work is being done does not mean that the safety or otherwise of a place is conditional on the completion of that further work.

The noble Baroness, Lady Whitaker, cited the question posed by the noble Lord, Lord McDonald of Salford, concerning a journalist. She is quite correct: I did not address that specifically when I spoke earlier. The question was not pressed on me subsequently, but given that the noble Baroness has returned to it, I will look into the matter with officials and correspond.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Deben Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Horam (Con)]

She will be deterred because the Bill is designed to send people to Rwanda, with a very narrow area of exemptions for those who cannot be sent to Rwanda. That is the way it will operate. Obviously, it will need to be spelled out, and the Government will have to put behind it all the explanations they can through modern social media et cetera to get across the message to the people who are at present in France that there is a real possibility that they will end up not in the UK but in Rwanda. That is how it works. That is how it is supposed to work, and I submit that widening it to all these other possibilities will detract from that deterrent element and therefore destroy the purpose of the Bill, with the domestic consequences that we can see.

[Lord Deben (Con)]

My Lords, it is extremely difficult to debate anything in the Bill if the only answer of those who are happy with it is, “It is all very difficult, and therefore we have just got to do it as we are saying, because we really cannot deal with any of the details”. I have to say to my noble friend that the fact that we are talking about people who come to this country not illegally but involuntarily means that we are not talking about people who are going to be deterred by anything. They do not want to come here, so the question is how we deal with those.

I must say I am a bit tired of having to remind this Government of what it means to be a Conservative. I had to do it earlier, on the single market, and I am now doing it on this. We have a reputation in the world because of our Modern Slavery Act. It was a brave and important thing to do. It was welcomed across the whole House. I am proud that it was a Conservative Government who did it. I am not proud that there is a Conservative Government undermining that, when we know that more than three-quarters of those who appeal in these circumstances are found to be right in their appeal.

We also know that appeal is very difficult. We know how many people who are trafficked do not get into the system because of the nature of trafficking. Those of us who sit in our comfortable places might just think, on Ash Wednesday, that this is a moment to reach out to those who are uncomfortable and not able to speak up for themselves. There are few people who are in a worse position than those, so on what possible moral basis do you threaten to send them to a country which has not signed up to the international agreement on modern slavery, has twice as many modern slaves as we do—and we admit that we have many whom we have not traced—and has a history of ignoring this problem? How on earth can we defend that on a moral basis, leave alone a practical one? What the blazes is the use of claiming that there is a deterrent effect when the person you are talking about is not in a position to be deterred because they have been taken up by someone who has made those decisions for them?

I believe we cannot allow the Bill to go through without some serious consideration of this point and make sure that we do not allow our country to be let down in this way.

[Lord Browne of Ladyton (Lab)]

My Lords, I rise to speak to Amendment 75 in this group, which is in my name and supported by the noble and gallant Lord, Lord Stirrup, and the noble Baronesses, Lady Coussins and Lady Smith of Newnham. The noble Baronesses have asked me to tender their apologies as they are unable to attend today’s Committee. I confidently expect that they may get an opportunity in later stages of the Bill to explain to your Lordships’ House their reasons for supporting this amendment.

Before I turn to Amendment 75, I wish to make clear my support for the other amendments in this group, those in the name of the noble Lord, Lord German, and the noble and learned Baroness, Lady Butler-Sloss. I commend them both for tabling these amendments and for the powerful clarity with which they were moved. I am strongly in favour of excluding unaccompanied children, victims of modern slavery and the victims of human trafficking—in fact, I am in favour of excluding those who have no option about where they are from deportation to Rwanda.

These debates are fundamental, even leaving aside the morality of offshoring—or, perhaps more accurately, offloading—a question which has received sufficient attention in your Lordships’ House to require no further explication from me. These decisions on exemption speak to the values we project around the world. Given the political capital that has been invested in the Rwanda scheme, its realisation, were that to occur, will attract a correspondingly large amount of international scrutiny. It is difficult to imagine the global derision and horror that would result from pictures of children and victims of slavery and trafficking being bundled on to flights for forcible removal from the UK, a place in which these vulnerable people have sought sanctuary, to any other country, never mind to one which is not, as we hear, in a condition to look after them and to protect them from the vulnerabilities that caused them to seek sanctuary here in the first place.

I turn to Amendment 75. As the explanatory statement makes clear, the new clause proposed would exempt people who are a very special case—those who have put themselves in harm’s way in support of His Majesty’s Armed Forces, or through working with or for the UK Government overseas—from removal to Rwanda, as well as exempting their partners and dependent family from such removal. Again, I ask your Lordships’ House to consider what message would be sent by the spectacle of someone who has faced peril in service of the UK receiving the reward of forcible removal from the very country for which they risked their life?

Last Monday, 5 February, in the debate on a UQ on the relocation of Afghan special forces, I welcomed—and I repeat that welcome today—the Government’s undertaking to review all the ARAP applications from members of the Afghan special forces, known as the Triples, that have already been deemed ineligible. Some of these very brave men and their families and dependants are hiding in Afghanistan, and others are in Pakistan fearing deportation, and awaiting whether the new Government in Pakistan have the same policy as the previous Government to deport them back to Afghanistan, where they would be in danger of their lives.

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[Lord Sharpe of Epsom (Con)]

My Lords, I will go into the detail that I have on what happens when someone arrives illegally and claims to be a victim of modern slavery, both under the Illegal Migration Act and pre-IMA. First responders will be expected to refer individuals into the national referral mechanism where there are indicators of modern slavery, whether IMA or pre-IMA.

Under the IMA, when somebody has arrived in the UK illegally and is therefore subject to the Section 2 duty to make removal arrangements, and has received a positive modern slavery reasonable grounds decision from the competent authorities in the NRM, they will be disqualified from the protections that typically flow from a positive RG decision unless the exceptions in Section 22 of the IMA apply.

Under pre-IMA, when someone has arrived in the UK illegally and they have received a positive modern slavery reasonable grounds decision in the NRM, they are eligible for the protections and support of the recovery period. However, if a public order disqualification, as set out in Section 63 of NABA, is made for an individual, that eligibility for support will not apply and they may be eligible for removal.

The other point is that, as I have said before from the Dispatch Box, the treaty specifically provides that we share information with Rwanda and that extra measures will be provided with regards to the specific vulnerabilities of the types that we are discussing. I hope that goes some way to clarify the picture. I appreciate that it is quite complex to keep up with, and I will write a letter.

Amendments 23 and 47 overlap with later amendments in the name of the noble Lord, Lord Dubs. I hope that the noble Lord, Lord German, will be content if I deal with the substance of that amendment when we reach that debate. In summary, Article 3 of the UK-Rwanda treaty makes specific reference to unaccompanied children not being included in the treaty and that the UK Government will not seek to relocate unaccompanied children under the age of 18 to Rwanda.

Amendment 85 looks to put a block on commencement and seeks to ensure that there are detailed assessments of the impact of the Bill on victims of modern slavery and human trafficking. The independent monitoring committee, established on 2 September 2022 under the terms of the initial MoU, has subsequently been enhanced by the treaty between the UK and Rwanda to ensure that the obligations under the treaty are adhered to in practice. The treaty already makes clear that the agreed monitoring mechanisms must be in place by the time the partnership is operationalised.

As noble Lords also know, the new Independent Anti-Slavery Commissioner started her role on 11 December 2023. The Government will work collaboratively with the commissioner to ensure that modern slavery is effectively tackled in the UK, and will work with international partners to promote best practice.

As set out in the earlier debate, the Government’s assessment in the published policy statement, drawing on wider evidence documents, is that Rwanda is a safe country with respect for the rule of law. The treaty that the UK has agreed with Rwanda makes express provision for the treatment of relocated individuals, demonstrating the commitment of both parties to upholding fundamental human rights and freedoms without discrimination and in line with both our domestic and our international obligations.

Rwanda is a country that cares deeply about refugees, and I thank my noble friend Lord Bellingham for his perspective on this. That is demonstrated by its work with the UNHCR to temporarily accommodate some of the most vulnerable populations who have faced trauma, detention and violence. We are confident that those relocated under our partnership would be safe, as per the assurances negotiated in our legally binding treaty.

In answer to the noble Lord, Lord Kerr of Kinlochard, Clause 7(2) of the Bill says:

“In this Act, references to a person do not include a person who is a national of the Republic of Rwanda or who has obtained a passport or other document of identity in the Republic of Rwanda”.


All relocated individuals, including potential and confirmed victims of modern slavery, will receive appropriate protections and assistance according to their needs, including referral to specialist services, as appropriate, to protect their welfare.

Morality was mentioned by a number of speakers. I would like to put on the record a slightly different perspective on morality. I think it is immoral not to try to stop vulnerable people being exposed to dangerous and involuntary channel crossings. It is immoral to facilitate the activity of criminal gangs, most of whom, by definition, are also human traffickers. It is our moral imperative to stop these modern-day slavers and smash these criminal gangs that are exploiting people and putting others’ lives at risk. If any victims are identified, as I have repeatedly said, there are safeguards within the treaty to make provision for their vulnerabilities.

[Lord Deben (Con)]

On that point, those of us who raised the question about morality agree with all the Minister said about it but, at this moment, we are clearly uncertain about whether people who have been trafficked are able to get support in this country, from a system that was laid down by a Conservative Prime Minister, before there is any question of them being exported to Rwanda. If the Minister can show that to us in the letter, which I hope he copies to me and to others, we will be prepared to accept that we are being moral, at least in that category. At the moment, it looks to us as if we are not dealing with the issue of people who could not be deterred from coming here because they are being brought here compulsorily.

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for that and will of course make sure that he is copied in to the letter. I heard very clearly what he said, and I speak on behalf of my noble and learned friend. Clearly, we would not wish to argue for a lack of morality in the safeguards that we are putting in place for vulnerable people.

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[Lord Falconer of Thoroton (Lab)]

My Lords, every time in this Committee you think that the Government cannot be more flattened than they were in the previous debate, they are even more flattened. I refer to the speech of the noble Lord, Lord Clarke of Nottingham, who in my respectful submission completely flattened the Government’s case for not allowing the courts in.

I support what the noble Lord, Lord Anderson, is proposing. As the Committee understands, it means that if somebody challenges whether Rwanda is a safe country in general, the courts must decide on it. The Government are obviously under no illusions about what such a clause would mean. It would not mean that an asylum seeker, every time they were in trouble and might be about to be expelled, could raise the question generally of whether Rwanda is a safe country; it would mean in practice that, eventually, one case in a high Court of Appeal would definitively decide whether at that time Rwanda was a safe country in general or not.

The practical consequence of the amendment from the noble Lord, Lord Anderson, is that the courts will determine once—and maybe again in a few years’ time if the position has changed—whether it is a safe country in general, and everyone else will be bound by that. The Government accept that, if the issue is whether an individual’s circumstances put him or her at risk, they have the right to challenge in court anyway. By refusing to allow this to happen, they are cutting out a one-off shot by the courts to determine whether Rwanda is a safe country in general.

Why on earth would they not want that to happen, as their case is not that Rwanda might or might not be a safe country but that it is a safe country? Might I venture to suggest a reason why they are behaving in this extraordinary way? It is because it will take a bit of time for the courts to reach that conclusion—maybe two or three months from the Bill becoming law—and in that time there might be a general election and nobody will have flown to Rwanda. Could a responsible Government be willing to put asylum seekers’ lives at risk on the chance that Rwanda might not be a safe country? Obviously not, without a proper examination by the courts.

What I am saying does not challenge the basic policy of deporting to a third safe country or offshore processing—that debate is for another day—but, if the Government are going to do this, to give people confidence in them and to give the world confidence in the UK, surely they should do it lawfully, not unlawfully. They should not be advancing bogus reasons for cutting out the courts, when the courts are there in every other consideration of whether a country is safe. It is very discreditable.

[Lord Deben (Con)]

My Lords, I hope the Committee accepts that I rarely intervene when the lawyers are at it, because I am not of great assistance, particularly to my noble friend of a great many years Lord Clarke. But he asked the Government to tell him of an occasion when this has happened before. I will remind him of one: the court of King Canute told him that, because he was sovereign, he could tell the waters to stop and the tide to go out. Of course, we were never taught it this way round in school, but the truth is that King Canute went to prove to his courtiers that he could not reverse the truth.

The problem with this part of the Bill is that it proposes that the sovereignty of Parliament is able to make a situation true, whether it is or not. In other words, this would be wrong even if the Supreme Court had not ruled that this is not a safe country. It is not part of the sovereignty of Parliament to declare truth; it is part of the sovereignty of Parliament to declare the law—and, in so far as we are sensible, we try to make the law as close to the truth as possible.

Now this Government have done a remarkable thing. There are many bishops on the Bench at the moment, so I will speak with a certain amount of care, but I seem to remember:

“‘What is truth?’ said jesting Pilate, and would not stay for an answer”.


This Government have not even asked the first question. They assert that this is true and, as my noble friend suggested, not only is it true but it will always be true until, I suppose, the Government—because the courts will have no place in this—say that it is not true.

The reason I feel so strongly about this is that I have spent nearly 11 years of my life as chairman of the Climate Change Committee. One of the problems I have faced all that time is people asserting “my truth” —not “the” truth but “my” truth—and that their truth is the equal of anyone else’s truth. That is not the nature of truth. Truth has constantly to be questioned. Doubt is an essential part of faith; you have constantly to question. The Government are proposing a unique situation, which is that we shall never question their decision, at this moment, that Rwanda is a safe place. I am not going to try to say whether I think it is safe or not. I think merely that it should be under constant consideration if we are going to take other human beings out of our jurisdiction and place them somewhere else.

That, if I may say so to my noble friend, is a moral matter. We remove responsibility by doing this, and the one way in which we can protect ourselves is if the place to which we send them is constantly available for questioning. The only place where that questioning can take place is in a court because courts listen to all the arguments, hear all the evidence and make a decision. If you do not like the decision, you can appeal it, but finally you have to accept it. Once you undermine that, I do not see how you can uphold the rule of law anywhere else. Once the Government have said that their truth is true and there is no other truth, we have moved into a position which is entirely unacceptable in a democracy. This Government have to understand that—on this issue perhaps alone—this House will have to stop this Government’s proposal by whatever way. This is our duty. We are not a House which just puts the details of law into some sense. We also have a constitutional position. The Prime Minister made his rather curious statement about the will of the people, but the will of the people can be protected only if this House stands up for the constitution of our nation, and our constitutional position must be that the Government cannot determine truth. Only the courts can do that.

[The Lord Bishop of Leeds]

My Lords, I will be very brief. I endorse the speech by the noble Lord, Lord Deben. I want to question slightly the use of truth because there is a difference between truth and factuality. Something can be not factual, but it can be true. Let us look at a parable, for example. We have not even got as far as factuality when we are talking about truth. To put it very simply—I am in terrible danger of evoking Immanuel Kant here, but I will try to avoid that—if I say I am a banana, it does not make me a banana. There has to be some credible questioning of that. I am not a banana. A country does not become safe because someone says it is, even if a Government say that. That has to be demonstrated, and it has to be open to question, particularly, as has been said many times, because the word “is”—we are getting very Clintonesque in his impeachment hearings when we get into the meaning of “is”—has a permanence about it that does not allow for the possibility of change. I fail to see rationally how this is such a problem for the Government, other than that there is an ideological drive in this which is not open to argument.

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[Lord Stewart of Dirleton (Con)]

My Lords, the policy of the Bill is to respond to the United Kingdom Supreme Court’s decision in the form of this treaty and the Bill which accompanies it. This does not, Canute-like, revise or reverse the truth. As I say, it is a response to the findings of the Supreme Court—findings made, as they were, in relation to a period of time which dates from the High Court’s consideration of the matter.

[Lord Deben (Con)]

These were findings that related to a period of time. The Government are saying that that period of time has moved on and therefore they make other findings. But they are also saying that no one may make any other findings, even if that moves on. In other words, the Government are saying that there is only one moment in which we can make this judgment. We have not got there yet—the Government have said we have not got there—but there is one moment, and once the judgment is made, although I do not know what the opposite of “retrospectively” is, it cannot then be changed, even if the facts change and even if the courts want to change it on the evidence. Will he please tell me whenever or wherever, in what Bill, that has ever been put before this or any other House?

[Lord Stewart of Dirleton (Con)]

My Lords, the point of the principle of the Bill is to remove the matter from the consideration of the civil courts and to place it before the court of Parliament; to take the matter from the civil courts and place it in the international and diplomatic sphere.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

I rise with great humbleness to intervene at this point. I was planning to refer to the noble Baroness, Lady Chakrabarti. I know that she has a book coming out shortly, Human Rights: The Case for the Defence. After listening to the noble Baroness, Lady Kennedy, I feel that possibly one of the two noble Baronesses should write a book “Courts and the Law: The Case for the Defence” because it seems to have been clearly identified that that is something we need. The point I want to make about the title of the noble Baroness’s book—she has kindly given me a copy, and I have not had time to read it yet, but I will —is how tragic it is that we feel as if we have to make a case for the defence of human rights. That is the place we are in now. That explains why I chose to attach my name to the notice of our intention to oppose the Clause 3 standing part of the Bill, as did the noble Lord, Lord German, the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Lister.

I think it is worth going back to the title of this clause:

“Disapplication of the Human Rights Act 1998”.


I fully understand that other amendments in this group are trying to make this less bad, but, following what the noble Viscount, Lord Hailsham, said, I feel that crying out in opposition to any disapplication of human rights is where I have to be. It is the only place that I feel that I can be. This picks up points made by the right reverend Prelate the Bishop of Chelmsford that human rights have to be universal. I was looking at one of the main United Nations websites, which defines human rights as

“rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status”.

If we take human rights away from some people, it does not affect just those people; it makes all of us far poorer and far more vulnerable.

[Lord Deben (Con)]

My Lords, I remember as a young boy walking with my father in a town. We passed a building which had “Constitutional Club” written on it. I said to him, “What does that mean?”, and he said, “It is the Conservative club. It is called a constitutional club because the Conservative Party believes that the constitution is very important to maintain the stability of the nation”. I rise to support my noble friend in his comments about this Bill in general and the particular clause which we are discussing now.

Nationality and Borders Bill

Lord Deben Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Baroness Prashar (CB)]

My Lords, I rise to support Amendments 156A and 156B, in the name of the noble Lord, Lord Alton, and supported by the right reverend Prelate the Bishop of St Albans and myself. I will be extremely brief as all the points I wished to make have already been covered. Therefore, I really want to say that I strongly support the amendments and the arguments made by the noble Lord, Lord Alton, that the Government should put on the face of the Bill that a reasonable grounds decision should be made on the tried and trusted standard of “suspect but cannot prove”. I think his explanation and the logic of his arguments were compelling, so I would urge the Government to pay some heed.

[Lord Deben (Con)]

My Lords, I declare an interest because, in my work on sustainability in the business that I chair, we of course help companies to deal with modern slavery. That is why I wish to rise. It does mean we know a bit about it, and I have to say to the Government that everybody who knows a bit about it does not agree with the Government. That is why we have to say this very clearly.

The problem with modern slavery is that people who are involved in it hardly know where they are and what it is all about. That is the difficulty because, whatever we do, access to whatever we do is always going to be the problem. We have to find ways of ensuring that as many people as possible can enter into the beginnings of a conversation which will, in the end, reach the position in which they will be released from modern slavery—and it is that beginning moment that is most important and delicate.

I agree with the noble Lord, Lord Alton, that what is being proposed in this part of the Bill should not be here at all, simply because, in this context, it makes a comment which it should not make. In this context, it comments that this is something to do with nationality, borders and immigration. But it is nothing to do with any of those except accidentally—and I use that word in the technical sense.

We ought to be immensely proud of this legislation. I sit as the independent chairman of the Climate Change Committee, so I do not often mention the fact that I have been a Conservative for many years. I am not quite sure of the situation in certain circumstances, but that is the position in which I find myself, and I will say that I think it is one of the great statements of the Conservative Party that it was at the centre of passing this legislation. It shows that we have a real understanding of the responsibility of those who have to those who have not. That is why the intervention of the right reverend Prelate is absolutely appropriate, because this about the attitude to human beings that we should have if we are people of faith.

Anything that detracts from a triumph should be opposed, above all, by those who have been proud of it in the past. That is why I do not want this particular debate to go on without somebody from these Benches making the points. It is wrong to make it more difficult for people to get into the system. The moment you move away from “suspect but cannot prove”, you make it more difficult, and I hope that this House will not allow the Government to do this. Above all, I hope that the Government will think again about why they want to do this. They have presented no proof that there is any widespread misuse of this. Even if they did, I put it to the Minister that that is a price we have to pay. They have not proved it; there is no evidence for it; but, even if there were, one has to accept that the nature of the people we are dealing with means that we have to reach out further than we would in other circumstances.

At the moment, I fear that the Government are like the Levite rather than the Good Samaritan, and I wish them to return to their proper place, which is to cross the road to find out what is happening.

[Baroness Butler-Sloss (CB)]

My Lords, for the reasons given by other speakers—particularly the last speaker, with whom I profoundly agree—I support these amendments. However, I want to raise a slightly different point on Clause 59. It appears to apply to children. I have had, over the years, numerous meetings with the Home Office, and I thought we had got to the position where the Home Office agreed that the NRM was not the right place for children to go, because anyone under the age of 18 becomes immediately, on arrival in this country, the responsibility of a local authority under Part 3 of the Children Act 1989. Consequently, local authorities take over these children.

As the Minister, the noble Lord, Lord Wolfson, pointed out, there are these independent guardians—advocates, who act as guardians—but the children are supposed to be cared for by a local authority with an independent guardian and should not be going through the NRM. What disturbs me about Clause 59, in addition to the points that have already been so ably made, is whether it is really intended that the Government want children to go through the NRM. Should not they in fact all be dealt with entirely through local authorities, with the help of the advocate?

--- Later in debate ---

[Lord Coaker (Lab)]

I rise briefly to say that we support the amendments in this group. I say to the noble Lord, Lord Deben, as the noble Baroness, Lady Hamwee, said, and we have said right across the Chamber, the points that he made about the contribution that Theresa May made—within the coalition Government, as I was reminded—were fantastic.

[Lord Deben (Con)]

I was not there for that, but it seemed to me that it was worth repeating, if I may put it clearly.

[Lord Coaker (Lab)]

Well, it is the first time that I have heard repetition in this Chamber, so I thought that the noble Lord could not have been here. But it was a serious point, and it deserved to be made again, because we all agreed with it.

We support all the amendments in the group. I will speak specifically to Amendments 157 and 173. The other amendments have been spoken to very ably by the noble Lord, Lord Alton, and others, so I will not address those, in the interests of time. With respect to Amendment 157, it is intriguing that the statutory guidance says that

“a Conclusive Grounds decision will not be made until at least 45 days of the recovery period have passed”.

Why does the Bill reduce that to 30? That is my understanding, unless I have misread it. We talk about enhancing, but, as I say, 45 days is the period in the statutory guidance, while the Bill talks about 30 days.

Given that we are in Committee, it would be interesting to hear more on this. Am I wrong? Does the 30 days refer to something different? I cannot find references to 45 days in the Bill, but that is what is in the statutory guidance. Could the Minister respond to that? It would be helpful to the Committee to know what the 30-day period is vis-à-vis the 45 days set out in the statutory guidance, which is what the whole sector uses with respect to the recovery period and is, indeed, how I have understood it.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

I am grateful to my noble friend for her intervention, which permits me the opportunity of not only repeating what I said from the Dispatch Box earlier about the importance of decisions being taken on a case-by-case basis, but advising the House—perhaps I should have done so in answering the noble Lord, Lord Alton of Liverpool—that in addition we are providing enhanced support and training to first responders.

The rationale underpinning the change proposed in relation to burdens of proof is certainly not to seek to exclude persons who ought to receive help and assistance from receiving it. The Government’s wish is that all who are victims should receive assistance and all who are criminal should receive their due punishment.

[Lord Deben (Con)]

If that is the rationale, I do not see why we need the change. I seriously do not understand what possible advantage changing this could be, whereas I perfectly clearly see what the disadvantage is. Although the Minister seeks in the most effective way to present the Government’s case, the word “rationale” is not one I would have used I these circumstances.

[Lord Stewart of Dirleton (Con)]

My noble friend sends me back to the dictionary. I shall include the use of that word in my reading later, among the other things which I expect I will be asked to reflect on. I think we are—or maybe I am—guilty of mixing up two things. The reason for the change to the test to introduce the balance of probabilities is to align ourselves with our international obligations under ECAT. It is in order to avert any baneful consequences thereof that I made reference to the enhanced support and training which first responders will receive, and to the other measures which I discussed.

[Lord Deben (Con)]

I am sorry; I will not interrupt again. I still do not understand the rationale of bringing ourselves into line with our international obligations. We do not break our international obligations by going further than the international obligations, so we are already in line with them; all we are doing is withdrawing to what are, in many of our minds, unsatisfactory international obligations. Without getting into the Brexit issue, I very much agree with the right reverend Prelate when he suggested that we thought this was precisely what the Government did not want to do. I happen to want to do it but that is a different thing. I feel rather hit by this in both ways.

[Lord Stewart of Dirleton (Con)]

The justification is to ensure clarity across the legislation, and I appreciate the comment made by the right reverend Prelate, and rehearsed by my noble friend, about advantages flowing or not from the Brexit process, which so many of your Lordships will have discussed. However, our ability to act differently from our partners across the channel is a valuable one, but what we seek to obtain by this measure is legislative clarity and a consistency in decision-making which will, we hope, benefit victims and develop understanding among all the agencies in this important sector. My noble friend is resuming his mask, and he did say that he would not interrupt again, although I hope that he will not bar himself from further interventions later in the debate.

I turn to Amendment 157, tabled by the noble Lord, Lord Coaker. I thank him for his powerful and compelling opening contribution to this debate and to earlier debates on the topic, and for his work at Nottingham University. I offer the Committee reassurance that we are committed to providing victims with at least a 45-day recovery period, or until a conclusive grounds decision is made, whichever period is the longer. Our position is—I maintain that this does not need to be placed on the face of the Bill, and I return to the earlier discussions with my noble friend Lord Deben—that it would create a misalignment with our international obligations under ECAT.

--- Later in debate ---

[Lord Deben (Con)]

I am sorry to remove my mask, but I am told in the Climate Change Committee, of which I am chairman, that we have to have a British ETS which is not aligned with the rest of Europe because that is what we want. Why does it apply to climate change but not to modern slavery? On both of those issues we are in advance and wish to continue to be in advance. I do not understand this alignment element.

[Baroness Ludford (LD)]

Can I join the maskless crew? Surely international law, and certainly EU directives, are usually a minimum requirement, so if we wanted 45 days and a European instrument said 30, that is brilliant; it is better. It at least complies, so what is the problem?

Northern Ireland (Executive Formation) Bill

Lord Deben Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Baroness O'Loan]

I did not intend to imply in any way that Parliament is not sovereign, but there is no obligation under European law or international law to introduce abortion.

[Lord Deben (Con)]

My Lords, from time to time we have to distinguish between what is utterly true, which is that Parliament is sovereign, and the particular circumstances in which that sovereignty is actually exercised. I am in the position of having been a passionate supporter—contrary to the views of the church of which I am an active member—of same-sex marriage. I do not think that anyone can suggest that I am holding things up because of my views on this. I happen to take a different view from the noble Baroness, Lady Harris, on abortion—perhaps that puts me into a rather special circumstance on this particular issue.

But I want to say to the noble Baroness that it is very difficult for any of us to get inside the minds of many people in the north of Ireland. That is a fact. We face a wholly different community from the communities to which most of us belong. That is true of people of all denominations, as a matter of fact. It is not an easy place to be. The difficulty that we have had of re-establishing devolved rule only shows how hard it all is. I have to say to my noble friend that many of us would like to see more signs of activity from the Government and the Secretary of State. I would like to feel that this was being pressed in a more active way than seems to be true—but perhaps it is being pressed and we do not know, so I do not want to carry that criticism too far.

But I beg people not to think that it is merely a matter of asserting the sovereignty of this Parliament to put through two changes in which they passionately believe—I passionately believe in one and passionately do not believe in the other. It is not just a matter of asserting our sovereignty. That is not how every community in the north of Ireland will see it. It will be seen as us deciding what we think is good for the Province.

Now I find that attractive because I very often want my opinions to be carried through more widely than they are. But we have already stretched the connection between us and the north of Ireland to breaking point over Brexit. I do not want to get into the nonsense that we have actually tried to carry through on Brexit when we ignored the problems of Ireland while going on about Brexit. We have already stretched that connection and are now suggesting that we stretch it even further. As the noble Baroness, Lady O’Loan, so remarkably put it, we are moving into a position in which false moves from us will change the whole nature of Northern Ireland.

There are those who want that and would see it as a benefit. But anyone here who cares about the unity of the United Kingdom should look very carefully at putting their perfectly reasonable personal views in front of the right of the Province to make up its own mind. After all, we specifically gave a series of things to Scotland, Wales and Ireland for people there to make up their own minds about.

[Baroness Harris of Richmond]

What would the noble Lord say to the Royal College of General Practitioners, the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives, which all agree that this legislation should go through?

[Lord Deben]

I would say that we live in a democracy in which we have devolved these decisions, and they must prove that to the politicians elected for the north of Ireland. If there are no such politicians, the least we can do is to have full consultation in order that they will feel that they have been properly involved. The noble Baroness is saying that we can say to the people of Northern Ireland, “You cannot even be consulted. We are going to take the view of these royal colleges—great though they are—and enforce them on you”. That is not the way to win battles. What happened in the south when people voted, surprisingly many thought, on both these issues is that they had the argument. They had the discussion locally and made the decision locally, and it will therefore stick. It changed people’s attitudes in a way that I was enthusiastic about on one side and on the other side not.

We cannot go around saying on the one hand that we believe in devolution and then when it is convenient, because people take a different view from us, we take the opportunity to enforce something. We have to win the argument—not in London, nor even in Edinburgh and Cardiff, but in Belfast. We have to win it in Derry and in the north of Ireland. I hope that the noble Baroness will go and seek to win it. I may try to persuade people to take the opposite view on one of the issues, but at least we would be talking to the people for whom we are legislating and to whom we gave devolved power. Of all parties who should be on this side, the Liberal Democrats, who have been prime movers on devolution, should think to themselves that devolution means taking the good with the bad. They should recognise that it means that people make up their own minds, whether we like it or not.

[Baroness Harris of Richmond]

The noble Lord questioned me about statistics, more or less, and the number of people in Northern Ireland. It is some time since 2016 when the Government decided that they did not want to change the law. But statistics from the Northern Ireland Life and Times Survey in 2018, just last year, found that 82% of the population polled agreed that abortion should be a matter for medical regulation and not criminal law, and 89% agreed that a woman should never go to prison for having an abortion. Those are significant statistics.

[Lord Deben]

Of all the parties in the country quoting public opinion polls, I should have thought that the Liberal Democrats should be particularly careful. I am not prepared to take public opinion polls—although I would point out to her that nearly 70% of the women of Northern Ireland and more than 65% of all people in Northern Ireland say that this should not be something that the United Kingdom Parliament decides.

So we can all bandy polls, but 2016 is a much more recent democratic decision than the democratic decisions that we have made. We are simply suggesting that, in order for the people of Northern Ireland not to feel that we are dictating to them in areas that are specifically their own, we should have proper discussion and proper concern for their views—and if that is not a Liberal view, I cannot think what is.

[Lord Adonis]

Before the noble Lord sits down, he is an extremely reasonable person, but surely he is missing the fundamental issue: for how long can people be denied fundamental rights simply because there is not an Assembly sitting in Northern Ireland? Of course, we agree with him about the virtues of devolution, but for how long can people be denied those rights simply because it is not sitting? It is two and a half years so far and the clock is ticking. Most reasonable people would think we are reaching the point where Parliament has to intervene if the devolved institutions are not there and working.

[Lord Deben]

I say to the noble Lord: that is in fact what is in the amendment. It enables that consideration to be done; it enables that conciliation to be done in the sense of giving people the chance to say what they think. There is a date on it and I remind him that I said in my own speech, as elegantly and delicately as I could, to the Government that I was not sure that the kind of oomph that we ought to have behind the attempts at the restoration of normalcy in Northern Ireland was there and I hoped that it would no longer look as if it was lacking. So I am not sure that we are very far removed. We are talking about making a decision but with the full respect of the people of Northern Ireland, either through their devolved Assembly or, if they do not have a devolved Assembly, through a form of discussion and understanding which means that people feel it is their decision and not ours.

[Lord Kilclooney]

My Lords, coming from near the border with the Republic of Ireland to listen to the debate today on Northern Ireland, I found the first hour very interesting but alarming—interesting because I am a former Member of the European Parliament and I am interested in Brexit and the debate for and against it, but it certainly was quite irrelevant to the situation in Northern Ireland and the Bill before us.

I have been encouraged by the atmosphere in the Committee in the last hour. It compares admirably with what existed in another place a few weeks earlier, when only a handful of people attended the debate on this Bill but then hundreds came to impose their will on the people of Northern Ireland without consultation. Setting a time limit for the introduction of issues such as same-sex marriage, abortion or whatever—and these are not the issues for debate; the debate is the future of the system of government in Northern Ireland—plays into the hands of some of the extremes that exist in Northern Ireland’s political life. There are unionists who believe in direct rule and who will be delighted to see this Parliament impose a decision on Northern Ireland, and most nationalists are delighted to see direct rule being imposed because they will say, “There are the English, once again imposing their will on the people of Northern Ireland”. So I find myself in agreement with a lot of what the noble Lord, Lord Deben, has just said and I was certainly encouraged by the words of the noble Lord, Lord Murphy—who, almost more than anyone else, needs to be thanked for the Belfast agreement which I have before me today.

This is the basis for the future in Northern Ireland—Catholics and Protestants and people of no religion working together, unionists and nationalists working together. There has been a recognition in the Committee this past hour of the importance of devolution and people working together in Northern Ireland. That was not clear in the other place last week. I hope, therefore, that we will not set a time limit for the introduction of issues such as same-sex marriage and abortion but instead will support the Belfast agreement and the right of the people of Northern Ireland to work together and reach their own decisions.

Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019

Lord Deben Excerpts

Wednesday 3rd April 2019 Lords Chamber

[Lord Bruce of Bennachie (LD)]

My Lords, I thank the Minister for his introduction and for the update after the debate we had in Grand Committee last week. He said then that he thought there were only a small number of relevant buildings.

There are two important points behind this. The first is about the flying of a flag to mark Europe Day and the specifics of when that flag should be the Europe flag. This statutory instrument removes permission to fly the Europe flag, even on those five or six buildings, apparently on the grounds that it would cause offence. I do not know whether that is the implication.

The second and serious point behind this is that there seems to be an assumption that because the UK may be about to leave the European Union, if we leave before 8 May—if we do leave—it would be illegal to fly the Europe flag on a public building in Northern Ireland. This seems to be unnecessary legislation with which to detain the House at all, as well as undesirable.

I will develop the arguments that I put in Grand Committee last week. I completely understand that the flying of flags in Northern Ireland is highly sensitive and contentious. We saw how contentious it was when the flying of the union flag in Belfast was limited. It led to riots and the destruction of the office of our sister party, the Alliance Party, so of course I understand the sensitivity of the flying of flags, although I have not heard that flying the Europe flag has caused that kind of reaction in Northern Ireland.

The history of the flag is that it is the Europe flag. Is it is the flag of the European Union, but it is not only the flag of the European Union; it is also the flag of the Council of Europe. Much more to the point, it was originally designed as the flag of the Council of Europe. It was commissioned and brought into use in 1955, a year before the European Community came into existence. That being the case, I point out to the House that there is a serious issue here because Britain was a founder member of the Council of Europe and Britain is not leaving the Council of Europe. The flag is the flag of the Council of Europe, and on that basis there is every good reason why we should show how European we are by flying the flag on Europe Day.

There is an issue about when Europe Day is. The EU designates Europe Day as 9 May, whereas the Council of Europe designates it as 5 May: 5 May was the date of the foundation of the Council of Europe in 1949 and 9 May was the day in 1949 when Schuman made his declaration to commemorate peace in Europe.

There is something fundamentally disturbing about the Government actively wanting to remove any consideration that there might be a flag flying somewhere in the UK, certainly in Northern Ireland, that gives the impression that we have not left the European Union—assuming that we have left—and I would like to turn that on its head.

The reason I have brought my amendment to the Chamber, as well as introducing it in Grand Committee, is that, as the Minister himself said, the guidelines issued by the Department for Digital, Culture, Media and Sport for the rest of Great Britain follow the same pattern, the difference being that in the rest of the UK they are just guidelines, whereas in Northern Ireland it is a matter of law. Nevertheless, the recommendation is that the Europe flag should cease to be flown in the UK, should we leave the EU. I think that I have articulated why this flag, as a Europe flag, should continue to be encouraged, and allowed, to be flown. It is to prove a point that Ministers repeatedly make—that we might be leaving the European Union but we are not leaving Europe. Of course, the Minister has also acknowledged that if we have not left the European Union by 9 May—in other words, if the date of 22 May comes into effect—the flags can fly this year. That also suggests to me that this legislation is not urgent in that context.

Therefore, I ask the Government to reconsider the basic thinking behind the idea that the Europe flag should disappear from public buildings in the UK if we leave the EU. My contention is that the Europe flag still has a place in the UK. I would not mind if the date were changed to coincide with the Council of Europe’s Europe Day to make the point. I gather that there is some difficulty in changing the date but I am sure that, if the will were there, it could be done.

Finally, what is the point of Europe Day in the first place? I think that there is an underlying misbelief that it is a day to celebrate the creation and extension of the European Union. However, it is not and never was. It is a day to celebrate peace in Europe and the continuation of that peace. I would like to think that the British people would want to continue to celebrate the fact that we achieved peace in Europe and that we want to continue to promote peace in Europe, regardless of our detailed relationship with our European partners. Let us remember that there are 47 member states of the Council of Europe, against what will be the 27 member states of the European Union.

Let us also remember, in case of misunderstanding, the design of the flag. As I said, it pre-dated the creation of the European Economic Community. People seem to think that the 12 stars represent the member states—which would be an odd choice because there were originally six—but the 12 stars have nothing to do with the number of member states. They are supposed to be a symbol of perfection. They commemorate the 12 tribes of Israel, the 12 apostles, the 12 labours of Hercules and the 12 months of the year. They are supposed to be a symbol of universal perfection and the flag is supposed to be a symbol of peace in Europe. I find it extremely disturbing that the Government are taking time to pass a law saying that we should no longer fly a flag that marks peace in Europe and Britain’s continuing commitment to the people of Europe. For that reason, I believe that we should not accept the spirit behind this statutory instrument.

[Lord Deben (Con)]

My Lords, I was present in the original debate in the other House when we agreed on the rules for Northern Ireland. Therefore, I hope that nobody will suggest that I am not extremely sympathetic to the concerns about flags in the north of Ireland. There is no doubt that the union flag was being used as a sectarian flag rather than a union flag, and therefore we passed regulations saying that the flag could be used only on certain dates. We also passed an arrangement that enabled us to change that. It is a very clear arrangement which means that a change can be made only with all-community agreement.

That is my first problem with this proposal. When we discussed it with the Minister, he said that we cannot change the date when the flag is flown to the 5th in order to make it clear that it is for the Council of Europe because that would need the agreement of all the communities—but we can stop the flying of the flag without the agreement of all the communities. That seems to be a very odd decision. He will say, of course —and he has—that that is what we said in the withdrawal Act. Well, we can make mistakes. I do not think that anybody in debating the withdrawal Act thought that the Government would specifically bring forward a Motion that does not have the proper assurance of all the communities in the north of Ireland.

Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019

Lord Deben Excerpts

Monday 25th March 2019 Grand Committee

[Lord Bruce of Bennachie (LD)]

My Lords, the Minister may be disappointed and surprised to learn that we do not support this statutory instrument. We think it undesirable and unnecessary. None of us can deny that flags in Northern Ireland are a very sensitive issue. Our sister party in Northern Ireland suffered the consequences of the dispute in Belfast in 2012 when its offices were burned out.

This is about a specific flag—the Europe flag—and a specific day. I am very concerned that DCMS has issued guidance—which I presume is not legally enforceable—that, if we leave the European Union, we should no longer fly the Europe flag on Europe Day. This seems a total denial of where this flag came from and what it is supposed to celebrate, which is not the European Union. The flag is in fact much older than the European Union, or even the Common Market: it was, in fact, created in 1955 as the flag of the Council of Europe. It remains the flag of the Council of Europe and the UK will continue to be a member of the Council—for ever, I hope—although the Prime Minister gives the impression that she would like to leave that organisation as well. I would absolutely deplore, as that was one organisation of which we were a founder member.

It is also interesting to note, as a matter of design, that the design of the flag—12 stars against a sky background —represents symbols of perfection. It represents the 12 apostles, the 12 tribes of Israel, the 12 labours of Hercules and the 12 months of the year. It is a symbol of peace in Europe and Europe Day represents peace in Europe, originally foreshadowed by the Schuman declaration. I am pleased that the Minister said that, at least this year, the European flag may continue to fly; at least I think that is what he said, because this year is the 70th anniversary of the foundation of the Council of Europe and it would seem very regrettable then to remove the flag from public buildings in Northern Ireland or anywhere else in the United Kingdom.

I put two questions to the Minister. There is no need whatever for this to be passed, is there not? I am minded—indeed, I intend—to table a Motion to the effect that this statutory instrument should be abandoned and that any such decision as to which flags are flown should be left to the relevant authorities in Northern Ireland as and when they are able to do so. I would also like clarification of what the DCMS guidance means for public buildings in the rest of the United Kingdom where, it seems to me, the Europe flag should fly on Europe Day and other organisations should be allowed to make their own decisions. The only minor detail is whether you fly it on 5 May or 9 May. The European Union chooses to fly it on 9 May, while the Council of Europe flies it on 5 May because that was the date of the foundation of the Council in 1949.

I speak with some passion on this, having been privileged to have been a member of the Parliamentary Assembly of the Council of Europe for six years. I am a passionate believer that the Council of Europe has contributed hugely to the development of, and the sustaining of peace and democracy in, Europe and that the United Kingdom, which Ministers have consistently said may be leaving the European Union—I say may be—is not leaving Europe. I suggest to the Minister that this is a completely inappropriate statutory instrument, that the DCMS guidelines are also completely inappropriate and that the United Kingdom should continue proudly to fly the flag of Europe, not the European Union, on Europe Day.

[Lord Deben (Con)]

My Lords, I was present in the debate when we discussed the flags issue in the first place. In the House of Commons at that time, we sought to ensure that the union flag was not used as a badge of sectarian difference. I was not only present but spoke in favour of the Government’s move, against the united opposition of the Ulster Unionists at that time: they did not want those restrictions. The purpose was to promote peace and harmony and to recognise the union flag as the flag of all who lived in the north of Ireland and not just of one part. Therefore, this is a very important issue and nothing that I say is meant to suggest that we should not have this rather different regulation for the north of Ireland, because this is about the history of the misuse of the union flag for sectarian purposes.

I take that very seriously, but I also take very seriously what seems to me to be a cheap and nasty statutory instrument. We have had to put up with all sorts of statutory instruments that we would have to have if we were to leave the European Union without a deal, but this one is not necessary. There is no reason for it at all, except a nasty little smack at the European Union and at Europe as a whole.

If the Government were trying to be helpful and to include people who are so deeply upset by all the Brexit shenanigans, they would merely have changed the date from 9 May to 5 May. We would merely have flown this flag on the day of the Council of Europe; that is the day when the council flies it. So there was a perfectly reasonable way in which the Government could have done that and in which DCMS could have provided its guidance. The truth is that this is unnecessary in any case. It is just mean to treat people in this way, particularly in the north of Ireland where there was a significant vote in favour of remaining within the European Union, and among those voters were large numbers of unionists.

--- Later in debate ---

[Lord Deben]

I am wondering why we do not just leave it on 9 May. If you cannot change it—which I understand—we should leave it on 9 May and announce that this is a reference to our membership of the Council of Europe. If it is the union flag, or the two flags, then that is perfectly all right. Why do we have to take it away? It is much better to leave it. Otherwise, it says something different.

[Lord Duncan of Springbank]

The noble Lord makes a point which he has made on many occasions—I do not doubt it. Earlier in his remarks, he said that we could do it on 9 May, but it would be better to do it on 5 May because the Council of Europe has a day that we could celebrate as well. He is now reverting back to 9 May, thereby reversing the points that he made in his earlier speech, and I will therefore set them aisde.

Importantly, we are recognising that in Northern Ireland—as anywhere else in the UK—flags are a sensitive issue. They are heavily regulated. Failure to do so has led not only to mistrust but to civil unrest. We must treat the reality in Northern Ireland with caution. This is why the adjustment to flying the flags on different days, or recognising—as we have not been able to do in Northern Ireland—the additional members of the Royal Family who are entitled to certain flag flying days, cannot happen without the express involvement of the Northern Ireland Assembly. It is absolutely appropriate, given how sensitive this matter is.

We are conflating two issues: Europe and Northern Ireland. When we look back to the period 1998 to 2000 in Northern Ireland, we begin to recognise that the flags issue was not only live, but dangerous. Therefore, we have always tried to move this forward inside Northern Ireland with permission. In this instance, we are making a correction and ensuring that the whole United Kingdom is treated in the same manner.

This brings me to the point raised by the noble Lord, Lord Bruce of Bennachie. Guidance issued by one of the Whitehall departments is different because it is not bound by regulation, as these regulations apply to Northern Ireland. They are not needed here because they are not as controversial. There will be no restriction on the flying of the flag of Europe in many places at council level, wherever they wish to do so. The actual designation of official flag flying days is heavily regulated in Northern Ireland. We are only correcting for the reality that Europe Day will not be celebrated in Northern Ireland because it is the flag of membership of the EU and that will not be true thereafter.

[Lord Duncan of Springbank]

I fear that the noble Lord has misunderstood my points. If I may, I will restate and re-emphasise them. I said that this regulation will come in only after we have exited the European Union. As the noble Lord will be aware, the point at which we exit the European Union is not yet clear. If that date is after 9 May, then the flag will fly this year because that regulation will not be amendable. This order amends it only after the point of exit. That is why for this year—I am being very frank—it is unclear whether the flag will fly as per the regulations within the amended 2000 order. Up until that point, I cannot give any greater clarity. We are doing this now because we are able to do it under the existing legislation in order to correct the situation following the European Union (Withdrawal) Act.

There may come a time when those in Northern Ireland wish to reflect on which flags they fly and when they wish to fly them—I have little doubt about that—but until the Assembly comes together to determine that, it will be unable to that matter forward. I note how important this matter has been and I state again, as carefully as I can, that Northern Ireland is the only part of this kingdom in which we have had to regulate the flying of flags. Nowhere else have we had to do so. Nowhere else at council level would we anticipate anything other than the flying of flags which people wish to fly, whether they be a union flag, a European Union flag or flags for other particular purposes. This will no doubt continue. Here we are talking about a very strict and specific piece of legislation which affects only Northern Ireland.

[Lord Deben]

I am sorry to interrupt my noble friend. If we changed this, we would have to go through a whole system. I understand that. It was a little unfair of him to complain that I was prepared to say that if he found that difficult, we might do it in a different way. It seems very odd that that we are removing this without going through that system. We have not asked all the people who have to be asked if we going to put something else in but we are unilaterally deciding to take this day out. I find that difficult.

I started off by saying that I have been through those debates and I know them perfectly well. I got into a lot of trouble with my unionist friends because I fought for what the Government wanted. I am perfectly aware of the difficulty in the north of Ireland, but is it acceptable to remove something without that process, when it is not acceptable to add or change something about that process? It seems unacceptable to do this unilaterally.

[Lord Duncan of Springbank]

The noble Lord, sitting as he does in a legislature, will appreciate the difference between making law and interpreting how you fly flags. At present, the difficulty he speaks of is not just a difficulty but an illegality: that we would not be able to move forward by adjusting the dates in Northern Ireland because of the restrictions of the law. What we might wish to do beyond that may be described as a difficulty, but what we seek to do here is to be legally correct in this instance. I am aware that the noble Lord has been passionate in his defence of the union flag and the union flag in Northern Ireland. I am also aware of how controversial that flag has been in Northern Ireland, for many different reasons.

The European Union flag we have flown on the ninth, which is flown across Europe, is primarily a flag of membership of the EU. We do not fly it in recognition of our membership of the Council of Europe because, most of the time—if I am being frank as a former Member of the European Parliament—people were rarely aware of the distinction between the Council of Europe and the European Council and the fact that one preceded the other by several decades. Even today, very few people marching on these streets will necessarily draw that distinction.

One of the great sins, I suspect, of this country—indeed, perhaps of our media—is how often we have been unable to explain in clear terms how the EU works, how our responsibilities within the Council of Europe work and the difference between the European Court of Justice and the European Court of Human Rights. We conflate these things constantly and I am fully aware that people right now will probably be unaware that the Council of Europe and in the EU, one heavily predating the other, have the same flag and, indeed, a shared anthem—and have had for some time, albeit that in the EU it is an unofficial anthem. All these things become conflated. The reality we face is simple: under the EU withdrawal agreement that we moved forward last year, this piece of legislation is uncontentious. It is important to stress that the European statutory instruments committee of this House said that, as a matter of policy, there is nothing contentious in the amendments proposed by this instrument.

Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019

Lord Deben Excerpts

Monday 25th March 2019 Grand Committee

[Lord Thomas of Cwmgiedd (CB)]

I thank the Minister for his clear introduction of this instrument. It seems to be an inevitable consequence of a no-deal scenario but one of its provisions is of great importance: the taking into account of previous convictions. A lot of work was done to try to improve the system across the EU for recording in a standard form the information in relation to previous convictions, which are of considerable importance in the court deciding what to do. Is the Minister able to say what arrangements are being made so that there continues to be the fullest co-operation on obtaining information about those convicted in member states? This is obviously particularly important in cases dealing with paedophiles and other violent offenders, as the courts here would want to take into account all details of prior convictions to ensure that appropriate penalties were passed. If that information was not available, it would obviously be of some considerable detriment to the safety of the general public.

[Lord Deben (Con)]

My Lords, I want to make a couple of points that I have made on previous occasions. I am always unhappy about things that deal with the law being discussed only by lawyers. It seems to me that non-lawyers should sometimes refer to the matters in front of us.

I heard the Minister say, kindly, that we now have the impact assessment. I am always fascinated by how the Government can say that they do not intend to provide guidance because a measure relates mainly to technical changes before they have produced the impact assessment. That seems like a decision before the fact. It is also interesting that the Explanatory Memorandum states:

“No, or no significant, impact on the private, voluntary or public sector is foreseen … The impact of this instrument, including on individuals, is negligible”.


That cannot be true if, for example, this information is not available; the noble and learned Lord made the point a moment ago that that will have a considerable impact on individuals.

The point I really want to make to the Minister is that this is another example of trying to deal with Alice in Wonderland. The idea that we would seriously not give the information we have to the rest of the European Union, nor hope that they would give us that information, seems outwith any kind of sense. I am perfectly prepared to accept that we will have to pass these regulations—because, no doubt, if that situation arose when we are not a member of the European Union, many of these provisions would not function in any case—but I wish that Ministers would just admit every time that it is much better to have a system in which you share than not. We are all fixated by the lunacy of the whole business of Brexit but that does not mean that a little humility from Ministers would not be welcome. They could say, “We are sorry to be in this position because it makes things very much worse”, instead of pretending that everything will be the same, that we will just fix things, that everything is perfectly okay and that if we have a no-deal situation, this will just go ahead. That flies in the face of the truth.

Every time we discuss these statutory instruments, we increasingly recognise what a nonsense the whole proposition is. I just want to hear that occasionally from the Government. They do not seem satisfactorily engaged in trying to solve the problem anyway, but it would be nice to hear an occasional ministerial comment that they are sorry to have to put this forward because it is obviously not a sensible situation or better than what we have at the moment.

[Lord Thomas of Gresford (LD)]

My Lords, the regulations deal with the current situation of mutual assistance, not just the passing of information from one country to another. That is what we are concerned with.

The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to taking account of convictions. As he explained, a lot of work has been done to make sure that convictions are presented mutually in an agreed format, which assists a sentencing judge greatly. The regulations—particularly in Part 6, entitled “Taking account of convictions”—provide that all individuals with prior convictions from outside the UK, whether from the EU or non-EU countries, are treated the same. Clearly, as the noble and learned Lord pointed out, there is a developed system of mutual assistance relating to convictions. I would be grateful if the Minister could explain the difference between the system developed between EU member states and that developed with non-EU states “outside the UK”. Those are the words used in the impact assessment. What difference in standards can we expect between the two systems?

Perhaps I may turn first to compensation for victims of crime. A significant change has been made because, at the moment, there is an obligation on EU member states not simply to offer advice but to co-operate in providing access to their compensation schemes. It is proposed that that system should go and the Criminal Injuries Compensation Authority will simply offer advice instead. We know from the impact assessment that, for example, it is not known at the moment how many British nationals have applied for compensation from EU compensation schemes because victims can apply directly. I am anxious to know whether the Minister can enlighten us about the nature of the advice that will be given to people injured as a result of criminal activity abroad as compared with the mutual assistance given under the current scheme. It seems that there could be a very considerable difference between the two situations. The Explanatory Memorandum states that there is currently,

“a system of formal communication between the relevant authorities”.

That will go, so what is the advice? If an injured person happens to learn about the scheme covering the offer of advice from the Criminal Injuries Compensation Authority, presumably he or she will have to take the initiative of approaching the CICA to obtain it.

I turn to mutual assistance. Of course, EU protection orders and supervision systems have not been used considerably, as the memorandum makes clear. These are important possibilities that no doubt could have been developed more than they have. For example, if a person has engaged in violent conduct towards their spouse in a European country and the spouse has taken out a protection order, there is great value in that being enforced in this country as well without any further proceedings. However, according to the regulations before us, it seems that separate and additional applications for protection will have to be made to the British courts.

It is a similar case as regards supervision orders. If a person found guilty of criminal conduct abroad to the effect that a supervision order has been made against him moves to this country, unless there is a separate and additional application to a British court, the protection against him that a supervision order provides will no longer exist.

The mutual recognition of financial penalties is another important area. Currently, a fine imposed in one EU country can be enforced in another. What mechanism does the Ministry have in mind following the implementation of this instrument—should that ever come about, which seems highly unlikely—for recovering financial penalties imposed in another EU country? How will that compare with the recovery of financial penalties from non-EU countries at present?

Although these regulations appear complicated and technical, there is an important principle of mutual assistance involved. Among EU members, we have built up systems that protect the people of this country. These are all to be swept away and replaced by separate applications and so on. This seems an undesirable outcome that has not been given the publicity it deserves.

Non-Contentious Probate (Fees) Order 2018

Lord Deben Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Hunt of Wirral]

No doubt the Minister will give a more considered reply, but I certainly do not regard it as a tax, particularly as it is described as, and actually is, an enhanced fee. I have to admit that I was troubled by the original proposal, but the Government have listened to those concerns and have significantly reduced the enhanced fees from that proposal.

[Lord Deben (Con)]

I genuinely ask out of misunderstanding: surely the point about probate fees is that you have to pay them, whereas other cases in the courts are of a wholly different kind. This is a payment you have to make if there is to be probate. Would my noble friend agree that it would be odd if we had a fee for the registration of birth—which is also compulsory—that was connected with the amount of money that the person registering would be able to pay? It seems odd to call a fee something which is connected with the value of something you have to do. It is the having to do it which makes it different from any other court situation that I can think of.

[Lord Hunt of Wirral]

I can think of many other court situations; I anticipate that the Minister will have a great list for my noble friend Lord Deben. There are many occasions on which you pay a fee; at the end of the day, it is intended to cover the costs of the system. This goes slightly further, I agree, but within a ring-fenced system—if I could have my noble friend’s attention—the money cannot go just anywhere. It has to go toward enhancing the Courts & Tribunals Service. I think this is the right way forward to ensure we have the access that I described earlier. I warmly commend my noble friend the Minister and I support his order.

European Union (Withdrawal) Bill

Lord Deben Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Empey (UUP)]

My Lords, before I speak to the amendment in my name, the noble Lord, Lord Tope, tempts me down memory lane. I served on only the first two terms of the Committee of the Regions; he is a veteran with many stripes on his arm and much more experience. I recall that when it began we had a president, Jacques Blanc, who was the president of Languedoc-Roussillon. We invited him to Belfast and he came in a pillar of fire, having hired a private jet. By the time he came to Belfast, he was Jimmy White and not Jacques Blanc. He then proceeded to tour the European capitals in that jet, much to the chagrin of our paymasters in the European Parliament. I do not know whether the jet has yet landed—but, whatever it did, President Blanc ran up against the buffers of the accountants in the Parliament. Nevertheless, it was an interesting body, but it was a mixture of those of us who were from local authorities and the very powerful—the Bavarians were on it and others with enormous resources. So it was not a balanced body, but it was interesting and at least everybody could have their say.

This probing amendment would require the UK Government to seek agreement with the European Union during the withdrawal discussions—which would of course include the transition period—that the current legal framework underpinning the regulation of medical devices in the EU will be maintained after 29 March 2019. This would enable notified bodies hosted in the United Kingdom, such as the British Standards Institute, to continue to perform conformity assessments on medical devices both from within the UK and across the EU, and issue CE safety label marking after the UK’s withdrawal. The noble Baroness, Lady Kennedy of The Shaws, earlier introduced a number of amendments concerning the welfare of women and young girls and said that she was hoping to put this clearly on the agenda that was moving forward—and this is what I am trying to do this evening.

On 14 September 2017 the noble Lord, Lord O’Shaughnessy, our Health Minister, gave a speech at the Association of British Healthcare Industries on the future of medical technologies post Brexit. He set out the Government’s commitment to the medical tech sector and discussed the opportunities and challenges it faces as the UK leaves the EU and what support the Government were going to offer. There were some core principles in the speech about regulation and conformity assessments post Brexit, including that patients should not be put at a disadvantage and that the industry must get its products into the UK market as quickly and simply as it does now. He said:

“I want to give this promise; no matter what the outcome of the negotiations—on basic patient safety and public health issues—the UK will be, as it always has been, a willing and reliable partner for Europe”.


Furthermore, the European Commission recently warned manufacturers within the EU that CE safety labels provided by notified bodies based in the UK may no longer be valid after Brexit. The Commission document states:

“Subject to any transitional arrangements that may be contained in a possible withdrawal agreement, as of the withdrawal date, the EU rules in the field of non-food and non-agricultural products, whether for use by consumers or professionals no longer apply to the United Kingdom”.


That means that the UK will no longer operate as a host country for EU notified bodies as it currently stands.

Significantly, the European Commission has advised manufacturers to consider the legal repercussions of their current conformity assessment procedure, advising that in future they will need to gain their CE certification through an existing EU member state after the UK’s withdrawal, or to transfer existing files to an EU notified body. It should be noted that, while manufacturers can obtain a CE label from any notified body in the EU, the UK has built an expertise in this area, with approximately 40% of medical devices and 60% of high-risk medical devices on sale in the EU having been certified in the UK by a notified body. The British Standards Institute has led the way in such testing and has recently set up an office in the Netherlands so that it will continue to have an EU-country representation post Brexit.

The development with the European Commission regarding the publication of the notice to stakeholders mentioned earlier would impact on the five existing UK-based notified bodies working in the area of medical devices, including the BSI. BSI chief executive Howard Kerr has previously suggested in media interviews that he believes that a mutual recognition agreement on medical devices between the UK and EU will most likely be achieved during the course of the negotiations, allowing for retained aligned standards after Brexit. As for the possibility of the UK hosting notified bodies after the UK’s withdrawal from the EU, some so-called third countries are able to operate as host nations for a notified body, including Turkey, Switzerland and Norway—so it is possible that an agreement can be made between the UK and the EU.

I believe that mutual recognition agreements and related conformity assessments post Brexit will be vital for sustained patient access to medical devices post Brexit. Although not always at the forefront of the current debate on the EU withdrawal Bill, they are still important so that treatment is consistent for patients. I believe that this approach is also in the spirit of the broad principles and objectives of the Bill: to make sound provision for the transfer of EU law into UK law. Mutual recognition agreements will be the mechanism within the necessary new trade arrangements to transfer into UK law the rights with regard to conformity assessments that the UK currently has in the area of the regulation of medical devices.

The second dimension to this is that there are a number of manufacturers of such devices in the United Kingdom, not only in my own region but elsewhere. They tend to have concentrated in the higher-value and higher-quality areas of the sector. So I believe that this item, although it may not attract the full House that we had earlier on other aspects of the debate, is nevertheless a significant matter. I believe that it should be drawn to the attention of the Government so that it is included in the agreement. It can be done—we know that—and I believe that it is something we should pursue vigorously. I beg to move.

[Lord Deben (Con)]

My Lords, I support the comments of the noble Lord, Lord Empey. It seems to me, though, that one should put them into a wider picture, because this is yet another example of how the best outcome of the negotiations is worse than where we are. I do not think that this Committee has to remind the country as a whole that this is what we are negotiating. We are negotiating a situation that we already have but in which we will of course have no say. Even if we get the very best deal we can, and protect our industry and the excellence of our regulatory structures—which, as the noble Lord, Lord Empey, rightly pointed out, has meant that in one case 40% and in another case 60% of these devices are brought here, whether or not they are manufactured here, because of the excellence of our regulatory control—we will no longer have a say in the central issue of how the regulatory structure is changed in future. This is crucial in this case because, as we all know, medical devices are constantly changing and improving. If we accept that, then we recognise that the way they are regulated—the way in which we set the standards—will also change, and that we will play no part in such decisions.

I am a patriotic person. I object strongly to the intention of sidelining my country from these things and us being the beggar, because that is what we are going to have to be. To compare us with Turkey, to put it delicately, does not fill me with enthusiasm. I suggest that this is another example of the intended consequences of Brexit because the people who are enthused by Brexit—and I see few of them around just at the moment—want to believe in a world in which we can operate on our own without any drawbacks. The noble Lord, Lord Empey, has rightly pointed out that that is not possible, and that the world we live in is a world of co-operation and joint concern in getting the right answers.

I wanted to intervene because I was unhappy with one part of what the noble Lord, Lord Empey, said. He talked of the need to protect ourselves and the importance of this to his own Province as part of the United Kingdom. I want to turn it round and refer to the importance of our contribution to these decisions, the important place that Britain should have in these discussions, not only with regard to medical devices—and the curious expression in the amendment that I particularly like, which refers to the “safeguarding of public health”—but of course to any medical aspect. We have had several debates in the Moses Room on precisely these issues. What this means, of course, is that Britain is saying, “We no longer want the opportunity to play a proper part in seeing that we do this right”.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, I would say to the noble Lord, Lord Deben, that we are really shooting ourselves in the knee. It is a matter of active interest to a significant minority of Members in the House, because replacement knees and hips are among the medical devices which are most common among us.

[Lord Deben]

I was going to suggest that there is probably not a Member of the House who should not declare an interest in this debate, because there are few of us who have not had some device or other implanted. Are we not lucky that they were made and regulated in this country?

[Lord Wallace of Saltaire]

Shortly after the referendum, I was sitting in the orthopaedic surgeon’s office with my wife, who was about to have a new hip, and he explained to us how leaving the European Union would cost the NHS more and would make it more difficult for him to procure what, in his opinion, was the best artificial hip available for the occasion. It was made by a multinational company in southern Ireland with bits—as noble Lords will know, these are complicated devices—coming from across the border and various other places. This undoubtedly would be more expensive, take longer and cost the NHS more. It is yet another example of where, despite the false promises of how much money would flow into the NHS, it will actually be completely the other way round. We will be creating artificial obstacles of one sort or another for these artificial devices, which will affect us all extremely closely. Those of your Lordships who have not yet got one will probably get one within the next 10 years. As the noble Lord says, we are absolutely shooting ourselves in various different embarrassing places by accepting that, in leaving the European Union, we are making these possibilities more difficult and more expensive.

--- Later in debate ---

[Lord Deben]

I bring the Committee back to the fact that this is a Bill about withdrawal, so we might ask why this amendment has been tabled. I say to the noble Lord, Lord Warner, how important the amendment is because of the Government’s commitment. The Government said that they were taking into British law all that was in European law. This amendment draws attention to the fact that the Government are not doing what they said they would: they are not taking into British law the protocols and those things that surround European law to which one can refer in a court case. We have been precise in what we have taken in and the Government have been precise in what they have excluded.

I speak in favour of the amendment because there is no reason why the Government cannot accept it. It is not possible to say that this is all a matter of negotiation—we are not going to negotiate this. Before my noble friend Lord Duncan spoke on the amendment before last, he gently upbraided me for suggesting that I knew how he was going to reply, and of course he did reply that it was not possible to commit the Government to the protection of medical devices because that was going to be part of the negotiation. However, there will not be a negotiation as to whether we will uphold the highest standards of public health; that will not be part of the negotiation at all. What is true is that the protection that, as a member of the European Union, we now have under European law would no longer be afforded to us were we to leave the European Union. Therefore, this amendment is merely to ensure that the withdrawal Bill does what the Government said that they wanted to do, which is to take into British law all those things that at the moment are in European law. This is an important amendment, because it helps to complete what, unfortunately, the Government left out from what they said that they would achieve.

There is a second reason why the amendment is so important. I am fortunate to be the chairman of the Committee on Climate Change. One of the things that is important to us is that we have a statutory position. When the carbon budgets, which we prepare, are passed into law by both Houses of Parliament, they cannot be changed thereafter without the Committee on Climate Change saying that that is right and proper. That is how we in Britain have made sure that we do not go back on our climate change commitments.

For most of our laws, we do not have that kind of protection, but we did and do have it because of our membership of the European Union. That is the kind of change that we will have to make if we leave the European Union to make sure that the public are as well protected after so sad an occasion as they were before. It is not me saying that but my right honourable friend the Secretary of State for Defra, who is not known for his enthusiasm for the European Union. He has made it clear that we need to protect the people of Britain post Brexit by having very clear rules which give independent enforcement of environment law. He said we cannot have a system whereby environment law is affected by the whims—or sensible policies—of Ministers. He said we have to have something independent and has promised that he will present it to the Houses of Parliament. If that is true about environmental law, is it not also true about public health law? Do we not need precisely the same protection for public health that we clearly need to replace the protection we have in the European Union on the environment?

I shall listen extremely carefully to my noble friend’s answer, but I do not think that we can now say that the reason this is not acceptable is because of negotiation, nor do I think the Government can really say that they do not believe that this is what their policy is. This is, after all, only a statement of what the Government have said they believe—so why can we not put it on the face of the Bill, continue the protection which the British people have in the European Union, so that if we leave we at least make sure that public health is as protected afterwards as it was before?

[Baroness Finlay of Llandaff]

My Lords, as the noble Lord, Lord Deben, has pointed out, this is about moving into our law the regulations that currently protect us. That is why it seems appropriate in this Bill. I remind the Committee that the implications of Brexit for our health were published in the Lancet in a review in November last year, which detailed the areas that are in jeopardy. A fortnight ago, the Guardian reported a leaked document highlighting an unprecedented, co-ordinated effort by transatlantic right-wing think tanks to secure what they described as the “ideal” trade arrangement between Britain and the USA, which would involve the UK diluting its existing standards on food safety. I remind the House that the excessive use of antibiotics has resulted in superbugs, which is precisely why we have been worried about diluting any food safety standards. Working conditions in the farming areas that want to export to us are troubling. This would tear up the precautionary principle, whereby companies have to prove their product is safe before it can be sold, rather than waiting for it to be proven unsafe before it is recalled. That precautionary principle and the principle of safety run right through everything. As my noble friend Lord Patel outlined, and as previously discussed in Amendment 30, this relates to all of the infective areas, but it also covers toxic substances and the way that we handle those.

I strongly support this amendment because it would build up the health protections that we have built up slowly since we entered the European Union. It would simply guarantee the continuity of the present conditions and ensure that Articles 9, 11 and 168(1) of the Lisbon treaty are actually respected. It would require European institutions to maintain high levels of human health in all their policies and activities and would mean that these are then mirrored in the UK. It would of course affect areas of shared competence, such as environmental law, health and safety law, and public health law, as well as trade law. By mainstreaming this, it would build on precedents in UK law such as in Section 75 of the Northern Ireland Act, Section 149 of the Equality Act and Section 3 of the Human Rights Act. It covers acts of all public authorities, as I understand it. Judicial acts taken in interpreting retained EU law would then be subject to the same standards that we are used to and have become accustomed to. It covers the whole of the UK, irrespective of whether legislation is made or adopted in Westminster, Belfast, Cardiff or Edinburgh. I cannot see a reason not to accept it. It would maintain the standard to which we have become used. We are all aware of the dangers of dropping that standard.

--- Later in debate ---

[Lord Duncan of Springbank]

In this instance, it is not part of EU retained law, but that is not the point. We are saying that the powers that already rest in the Secretary of State’s hands are equal to the powers that would come through this amendment.

[Lord Deben]

If it is not part of this Bill, why not? The Government said that they were going to take this into the legislation. Why is it excluded? That is why people are frightened—because the Government have not put it in the Bill.