European Union (Withdrawal Agreement) Bill

Lord Duncan of Springbank Excerpts

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, this is not the first time we have debated the options for future UK participation in EU agencies and I doubt it will be the last. However, it remains a vital issue, and one where the Government and the Opposition remain at odds.

We have always been clear that, while it would require ongoing payments to the EU, it is in the national interest for the UK to continue working within or alongside EU agencies. These are the bodies that were established with the UK’s blessing, and indeed often at its insistence, to share best practice and promote efficiency by avoiding unnecessary duplication. Participation often comes with access to shared databases or alert systems. These are particularly important for food safety, product recalls and so on.

Under Mrs May, the Government shifted from point-blank refusal to even debate the issue to half-hearted commitments to exploring their options. Later they edged towards continued participation in some agencies if the price and terms were right. All the while we edge towards our exit without any kind of clarity. Your Lordships’ House and its committees have previously explored the options and precedents at some length. I hope the Government will have undertaken their own assessments. The Minister will know that it is not only possible for the UK to continue as part of many agencies but that that would be actively welcomed by our friends and colleagues across the EU 27.

As with the last group of amendments, I know the Minister will fall back on the fact that these are matters for the next phase of the negotiations. I also know that the Government will resist this amendment, as they have done with every other amendment that we have debated in recent days. I strongly disagree with that approach but it is the Minister’s prerogative. However, the suggestion from my noble friend Lord Whitty is a sensible one. All he seeks is an assurance that Parliament will be provided with information on the Government’s plans for future participation in each EU agency and will have the chance to debate those decisions. I have no doubt that your Lordships’ House’s committees will continue to carry out inquiries in these specific subject areas, and those reports will continue to be useful and give us the chance to talk about specifics, but I would like a commitment from the Government that they will be proactive in their approach, providing a speedy response and ensuring that sufficient time is allocated for discussion.

In my career I have been a much-regulated person, and the value of effective regulation when it comes to safety, trading, smoothness and so on is overwhelming. Every now and then we get a sad reminder of that when it breaks down, and unfortunately we have had this recently in the aviation industry. To take on the sheer complexity of certificating aeroplanes, for instance—in this case the Boeing 737 Max—you need an enormous level of competence and real political clout. The FAA failed to supervise Boeing successfully despite being a body in a big country which had all the resources to do it. The European aviation safety organisation did have that size. We have to recognise that to discharge these responsibilities without being part of a larger agency will be an enormous challenge, requiring enormous resources.

I really hope that the Government will take the general thrust of my noble friend Lord Whitty’s amendment and recognise just how valuable it is to retain membership of the European agencies in one form or another. The chances of generating our own capability to have the same impact on safety in particular, but also reliability, co-operation and so on, are, in my view, close to negligible.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)]

My Lords, this has been a short but worthwhile debate. I thank the noble Lord, Lord Whitty, for tabling amendments which have allowed us to discuss the matter. Amendment 62 lists the large number of agencies of which we are full members; I will not read them out either, but I recognise their value and worth over the years.

It is important to stress certain points at the outset. Of course, during the implementation period, we will remain full members of and have full participation in these bodies. We have also made declarations about which bodies we have a particular ambition to remain active in after that implementation period, covering things such as aviation safety, the chemicals agency and the medicines agency. We can all see the value in those. However, I must stress again that these elements will be subject to an ongoing negotiation. They cannot be secured by unilateral demand. There will be a discussion to take that matter forward.

It is important to stress that in each of these areas and with each of these agencies, it is not the Government’s intent to make any of the adjustments in secret. It will be necessary for all those regulated or affected by those agencies to understand how the Government-EU negotiations will impact the industries, sectors and the individuals themselves. The obligation to provide a report is all but superseded by the Government’s necessary commitment to do this, to ensure the safe continuation of each of the elements for which those agencies are responsible.

The Prime Minister himself has said that he will keep Parliament fully abreast of these developments, and rightly so. Even more importantly, the committees of this House and the other place will be in full scrutinising mode to ensure that the way these evolutions unfold is fit for purpose, works for those affected and ultimately delivers against the Government’s objectives of allowing growth in these areas. A number of noble Lords have hinted that some of these areas are more challenging to deal with and that is why we need to find ways of working through, to make sure that we are not dimming our ambitions or collaborations in any way. I hope that through those negotiations we will be able to move these matters forward in constructive ways.

The noble Baroness, Lady Miller, asked about the research challenges. I accept that the Joint Research Centre and some of the institutions to which we belong will need to be considered in a new light. I also recognise that we are a participant not just because of our membership but because of respect for the science for which we are responsible and the work we are able to bring. That is a testament to our universities and our wider academic sectors. We should not lose sight of the fact that we are not just active but valued participants in a number of these areas. That relationship must continue because, in many respects, the research that is being considered is more important than the politics which underpins some of today’s debate.

I cannot accept the amendment, but I accept why the noble Lord, Lord Whitty, tabled it. I accept that he has done so to try to secure from the Government an understanding and an appreciation of how we will go forward. The important thing is that we will be transparent. The negotiations will consider our relationship with each of these agencies and, as that consideration evolves, we shall ensure that both Houses of Parliament are fully abreast of what this will mean. We will do so in a manner that allows the necessary scrutiny that noble Lords would expect from the committees we have here today. The settled will of developing these ideas will be done in collaboration with the EU. Those negotiations are important but, on a number of issues, I am afraid we cannot give the commitments that even I would like to give just now because they rely upon that negotiated approach. On that basis, I ask the noble Lord, Lord Whitty, to withdraw his amendment, in the knowledge that his ambition is, I believe, also shared by the Government.

[Lord Whitty]

My Lords, I am very grateful for that full reply from the Minister on the intent of Government in these areas. I would, however, ask him to comment on one or possibly two areas.

First, the three agencies that he picked out were the ones that the previous Prime Minister picked out, in one of her major speeches in this saga, as being particularly important for continuing participation. Perhaps I should solidly approve the consistency of policy within the Government over the change in regime, but if that is still the priority, it is a rather limited number of these agencies.

Secondly, the noble Lord said that things will continue as normal during the implementation transition period. My understanding—as of a few months ago, anyway—was that, while the rules would remain the same, our participation in any of the executive bodies of these agencies has been denied by the European Union. If there is a change in that situation, I would strongly support it, but my understanding is that only a few weeks ago the EU’s view was that we would no longer participate, even though we were bound by the rules. Could the Minister comment on that?

[Lord Duncan of Springbank]

Yes, of course. The noble Lord is correct. I did not mean to imply that there is no change whatever. I meant that what those agencies do, and our commitment to those agencies, continues unchanged during the implementation period, until such time as the negotiations reveal the structure or the future arrangement. I picked out the three particular agencies because there has been continuity on those between the two Administrations post the election or post change of regime, and those are clearly ones in which we would wish to see an active participation. We would prioritise these in developing a relationship with the EU, but not exclusively so—I would not wish it to be thought that, of the agencies that have been listed, only those three are for active consideration. Those are ones that, in light of our conversations and debates so far, probably stand at the top of the list. For each of the others, an accommodation and a relationship will be required. What it will be and how it will be determined will ultimately evolve through those negotiations. I hope this House and the other place will be kept fully informed of those.

[Lord Whitty]

My Lords, I thank the Minister very much for that clarification, and I beg leave to withdraw the Amendment.

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Monday 18th June 2018 Lords Chamber

Moved by

[Lord Duncan of Springbank]

That this House do not insist on its Amendment 24 and do agree with the Commons in their Amendments 24A and 24B in lieu and do propose Amendment 24C as an amendment to Commons Amendment 24A—

24A: Page 9, line 21, at end insert the following new Clause—
“Family unity for those seeking asylum or other protection in Europe
(1) A Minister of the Crown must seek to negotiate, on behalf of the United Kingdom, an agreement with the EU under which, after the United Kingdom’s withdrawal from the EU, in accordance with the agreement—
(a) an unaccompanied child who has made an application for international protection to a member State may, if it is in the child’s best interests, come to the United Kingdom to join a relative who is aged 18 or over and—
(i) is a lawful resident of the United Kingdom, or
(ii) has made a protection claim which has not been decided, and
(b) an unaccompanied child in the United Kingdom, who has made a protection claim, may go to a member State to join a relative there, in equivalent circumstances.
(2) For the purposes of subsection (1)(a)(i) a person is not a lawful resident of the United Kingdom if the person requires leave to enter or remain in the United Kingdom but does not have it.
(3) For the purposes of subsection (1)(a)(ii), a protection claim is decided—
(a) when the Secretary of State notifies the claimant of the Secretary of State’s decision on the claim, unless the claimant appeals against the decision, or
(b) if the claimant appeals against the Secretary of State’s decision on the claim, when the appeal is disposed of.
(4) In this section—
“application for international protection” has the meaning given by Article 2(h) of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third- country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted;
“protection claim” has the same meaning as in Part 5 of the Nationality, Immigration and Asylum Act 2002 (see section 82(2) of that Act);
“relative”, in relation to an unaccompanied child, means—
(a) a spouse or civil partner of the child or any person with whom the child has a durable relationship that is similar to marriage or civil partnership, or
(b) a parent, grandparent, uncle, aunt, brother or sister of the child;
“unaccompanied child” means a person under the age of 18 (“the child”) who is not in the care of a person who—
(a) is aged 18 or over, and
(b) by law or custom of the country or territory in which the child is present, has responsibility for caring for the child.”

24C: Line 8, leave out “is aged 18 or over and”.

[Lord Duncan of Springbank (Con)]

My Lords, the strength of feeling on this important issue has been evident each time your Lordships have discussed it. It is important that I begin by paying tribute once again to the noble Lord, Lord Dubs, for bringing forward this important opportunity for us to speak on these key issues. I should also again thank UNICEF UK, the British Red Cross and others who have helped contribute to the evolution of this amendment. I must be clear at the outset that we are here discussing asylum seekers and not refugees. Throughout the process the Government have been eager to ensure that the clause was phrased in such a way as to enable us to deliver the intended outcome. For that reason the Government have brought forward an amendment in lieu of that of the noble Lord, clearly stating that it will be a priority for the UK, in negotiations with the EU, to safeguard the rights of unaccompanied asylum-seeking children. However, it is important that we are clear that the amendment today is a framework for those negotiations.

The Government have listened to concerns raised in the other place. Following commitments given by my right honourable and learned friend the Solicitor-General, the Government have tabled a further amendment stating that we will seek to negotiate an agreement under which unaccompanied asylum-seeking children in the EU will be able to join parents, grandparents, siblings, spouses, aunts and uncles lawfully resident in the UK, and vice versa. Further, we will not seek to put an age limit on the sponsors of reunification under this agreement.

This clause establishes a clear grounding for the negotiations yet to come. I must remind your Lordships, however, that it will be the final agreement, and if necessary its implementing legislation, that will lay the legal basis for unaccompanied asylum-seeking children to be transferred here. Nothing in the Bill will confer leave to enter or remain in the UK. It is the basis upon which we will enter negotiations with the EU and nothing can be achieved unless and until we reach such an agreement.

Finally, I reiterate the comments made by my right honourable and learned friend the Solicitor-General in the other place. We will approach the negotiations on the basis that, as is currently the requirement under the Dublin regulation, extended family members—by which I mean grandparents, aunts and uncles—will need to be able to demonstrate that they have adequate resources and are able to care effectively for the child in order for a transfer to take place. The overriding objective must be that any transfer is in a child’s best interest, and the requirement to demonstrate adequate resource is a fundamental part of this. Similarly, where the unaccompanied child is seeking to join a relative in the UK who is also a child, there must be adequate reception conditions in place before that transfer can take place. We will therefore seek an agreement which reflects that not only must a transfer be in the child’s best interest but there must also be an identified, funded place in the care system for them in the country to which they are to be transferred. This is an important safeguard. Just as we should not bring children to the UK if they have nowhere to stay and receive care, we also must not transfer children to EU countries unless and until we are satisfied that their care needs will be met there. Any agreement must reflect that.

I hope that this House will recognise the commitment the Government have shown in bringing forward further amendments to provide greater reassurance to vulnerable individuals. I therefore ask the House to accept these amendments as sent to us from the other place. I beg to move.

[Lord Dubs (Lab)]

My Lords, I am grateful to the Minister and his colleagues for what he has said and for what the Government have done. I could not have improved on what he said. It is an important day for child refugees. We have tried to keep the campaign on behalf of unaccompanied child refugees on a cross-party basis. We saw that in this House and there are some Conservative MPs who are very supportive in the Commons as well. Without that, we would not have got to where we have. I believe that there will be quite a number of child refugees in Europe who, through this amendment, will, I hope, be able to have a better life in this country.

I have always argued that we should not take responsibility for all child refugees, but this amendment deals with those who have a connection through family members and relatives in this country, just as there are child refugees in other countries who, under the present system, have the right to join their relatives there—for example, a Syrian boy in France could join an uncle in Stockholm. This would safeguard the position as regards that agreement when we leave the EU. I am very grateful to the Minister and to all those in all parties who have supported this. I believe the cause of child refugees is, by and large, supported by most people in this country—although not by everybody. I think that if one puts it to people in this country they will say that, in terms of our humanitarian traditions, it is right that we should give support to child refugees. Public opinion is on our side and I am grateful that the Government have been so helpful in what they have done today.

--- Later in debate ---

[Lord Goldsmith]

My Lords, I add our thanks to the Minister for the tribute that he paid to my noble friend Lord Dubs. We entirely endorse that.

[Lord Duncan of Springbank]

My Lords, I think we are in full agreement in paying tribute not only to the noble Lord, Lord Dubs, for his diligence, his commitment and his compassion, but to all those across all parties who have recognised that, irrespective of Brexit, we must recognise our obligations and duties across Europe to the reunification of asylum-seeking children. It is also important to stress that across Europe, and indeed across the world, others are wrestling with this challenge and some are not doing very well. I believe we have established the right outcome here.

Motion agreed.

Moved by

[Lord Duncan of Springbank]

That this House do agree with the Commons in their Amendments 25A to 25E.

Lords Amendment 25

25: Before Clause 10, insert the following new Clause—
“Continuation of North-South co-operation and the prevention of new border arrangements
(1) In exercising any of the powers under this Act, a Minister of the Crown or devolved authority must—
(a) act in a way that is compatible with the terms of the Northern Ireland Act 1998, and
(b) have due regard to the joint report from the negotiators of the EU and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 of the Treaty on European Union.
11 (2) Nothing in section 7, 8, 9 or 17 of this Act authorises regulations which—
12 (a) diminish any form of North-South co-operation across the full range of political, economic, security, societal and agricultural contexts and frameworks of co-operation, including the continued
15 operation of the North-South implementation bodies, or
(b) create or facilitate border arrangements between Northern Ireland
17 and the Republic of Ireland after exit day which feature—
(i) physical infrastructure, including border posts,
(ii) a requirement for customs or regulatory compliance checks, (iii) a requirement for security checks,
(iv) random checks on goods vehicles, or
22 (v) any other checks and controls,
23 that did not exist before exit day and are not subject to an agreement between Her Majesty’s Government and the Government of
25 Ireland.”

--- Later in debate ---

25E: Line 23, leave out from second “not” to end of line 25 and insert “in accordance with an agreement between the United Kingdom and the EU”.

[Lord Duncan of Springbank]

My Lords, I hope I can be brief, as befits the hour. I thank again my noble friend Lord Patten for his amendment and all the work he has undertaken since it has been lodged. Indeed, I thank all noble Lords who spoke on Report. When we first addressed this amendment, we made clear that, while we agreed with the spirit and intent of the amendment, its language was potentially too loose and perhaps the Bill was not the most appropriate home for such an amendment. Since then, we have reflected further. Ultimately, we acknowledge that it is difficult to justify opposing something with which we almost entirely agree. On that basis, as the Government stated in the other place on Tuesday, we are happy to accept the thrust of the amendment. The only reason we return it to your Lordships’ House is to ensure that the amendment we accept in principle is fit for the statute book.

To achieve that aim, the other place has agreed amendments in lieu of those tabled by my noble friend Lord Patten. These amendments do three things. First, they ensure that the amendment reflects the reality that the withdrawal agreement will be concluded between the UK and the EU, not the UK and Ireland. It is important to reflect this reality, because otherwise the amendment risks contravening the principle of consent in the Belfast agreement, an issue raised when we debated this matter by the noble Lord, Lord Empey, and my noble friends Lord Trimble and Lord King of Bridgwater. The Belfast agreement does not provide for joint authority over Northern Ireland between the UK Government and the Irish Government. That is why the Government replaced the reference to the Government of Ireland with a reference to the EU.

Secondly, the changes tabled in the other place ensure that we refer back to the Northern Ireland Act when we talk about north-south co-operation, rather than creating a new definition. Thirdly, the changes tabled in the other place tighten the amendment. The wording in the original amendment was not legally watertight, so the Government’s reductions are important in ensuring that this amendment sits appropriately on the statute book. Ultimately, this amendment in lieu still refers to “checks and controls”, so covers the different types of checks and controls listed in my noble friend’s original amendment. I stress that this amendment is only about the powers in the Bill, and applies only in relation to the agreement we reach between the UK and the EU. Its effect does not stray more widely. As we have said before, the Northern Ireland border will be dealt with in the withdrawal agreement, which will be implemented in domestic law by the withdrawal agreement and implementation Bill.

In conclusion, I hope I have the support of your Lordships in backing the amendment in lieu from the other place to ensure that this otherwise sensible amendment can complete its journey to the statute book.

[Lord Cormack]

My Lords, I think this is a very fine illustration of what this House has been able to do to the Bill. Of course, tomorrow all the focus, all the razzmatazz, will be concentrated on the vote that took place less than half an hour ago, but there has been real progress and a real meeting of minds. Clearly, we are very much in debt to my noble friend Lord Patten for his initiative, but the Government have responded in kind and that is something for which we are all grateful. It also underlines the fact that this House was able to give critical scrutiny to the Bill and the Government were able to recognise, on many occasions, that points of real substance had been made and real advance had been achieved.

I hope that when people look back on this, all the ridiculous accusations of betrayal and treachery and enemies of the people—all that rubbish—will be forgotten and what will be remembered is that your Lordships’ House devoted many hours of painstaking scrutiny to a Bill that we all recognised had to go on the statute book, and we improved it significantly. I am quietly proud of what we have done in this House. I hope all your Lordships will be. I hope that those outside who comment on these affairs will recognise the constructive role of this House of Parliament.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

You can please some of the people some of the time, but never all of the people all of the time. Like my noble friend Lord Hain, I should like to have seen more reference in the amendment to the customs union that has to be in some way adopted to ensure that there is no very hard border. I also agree, however, with the noble Lord, Lord Cormack: the fact that this amendment is before us at all is an indicator of the work of the Government, the Minister and his ministerial colleagues, including the Member for Worcester, who has been dealing with this. The Bill now refers to the Good Friday agreement, north-south ministerial bodies and the need to avoid a physical border with all its trappings. I am sure that in the months ahead the Minister will be able to find some answer to my noble friend Lord Hain in the Trade Bill that will come before us—it is a hugely important issue—but I very much take the point made by the noble Lord, Lord Empey. He, the noble Viscount, Lord Bridgeman, the noble Lord, Lord Bew, and I were at the British-Irish Parliamentary Assembly in County Sligo last week meeting Members of Parliament not just from Ireland and the United Kingdom but from the devolved institutions, and there was unanimous agreement that Brexit is dominating British-Irish relations. No other country in the European Union will be affected like Ireland, and it is very important that we acknowledge that in Parliament as well as in government.

The other point made by the noble Lord, Lord Empey, is also vital. The Government must concentrate their efforts on restoring the institutions in Belfast. Only this week, the Government announced extra money for the National Health Service. The Barnett consequentials of that for Wales and Scotland will be decided by Ministers and Parliaments. Who will decide where that extra money—hundreds of millions of pounds—will go in Northern Ireland when there is no Executive? More significantly in the context of this debate, there is no political voice from Northern Ireland in the negotiations dealing with these important issues. I am sure the Minister will have this uppermost in his mind in the weeks ahead. In the meantime, we accept that this amendment is not everything we wanted, but it is a lot of it, and I hope that the Commons will accept it when it goes back to them. There is absolute recognition that, 20 years after the signing of the Good Friday agreement, we must not allow Brexit to interfere with all the good work that has resulted from that agreement in 1998.

[Lord Duncan of Springbank]

My Lords, as ever on this issue, we have brought forward some of the key aspects that are important to our relations in Northern Ireland. I shall touch briefly on some of the points raised. A number of noble Lords stressed that there is a border between Ireland and Northern Ireland. There are different jurisdictions for taxation and various other aspects, but we have to recognise that we have made great progress in how that border is viewed and must recognise it going forward. We cannot create further infrastructure on that border.

I bring my points directly to those raised by the noble Lord, Lord Hain, who was disappointed that there was not enough of the specificity and designation that he felt needed to be there. In truth, when we talk about checks and controls we are not trying to be ambiguous; we are trying to capture all those aspects. When I spoke in one of the previous debates in your Lordships’ House, I addressed issues raised by the noble Baroness, Lady Kennedy of The Shaws, about the checks that will not happen on that border. There will be no profile and no quixotic behaviour. We need to recognise that the border as is must remain as is. We shall not impose on the border, through either infrastructure or unintentional non-tariff barriers, any restriction that impedes the movement of people or indeed, we hope, of trade and goods. That will of course be developed and resolved in the Bills that come after; there will be opportunities in both the Trade Bill and the withdrawal implementation Bill to address these matters still further.

It is important to reflect on the points raised by my noble friend Lord Cormack at the beginning. This may not be where the razzmatazz of the afternoon is but what we have done here is bring together all sides of the House, I hope, in putting into the Bill that which was not there before: recognition of the vital importance of the Belfast agreement and recognition of north/south co-operation are now in the Bill because of the activities of this House and the other place. There will of course be opportunities to develop those aspects.

There will be challenges, I do not doubt, and it is right to reflect that the absence of an Executive in Northern Ireland is a detriment to the people of Northern Ireland at this critical moment. There are not only the Barnett consequentials on health but many other examples where, too often, we are calling on civil servants to do the job of Ministers. That cannot go on. Equally, there are times right now when the voices of the communities in Northern Ireland would be an asset to our engagement on the wider Brexit question but they are missing.

The noble Lord, Lord Empey, said we should have more pith. Well, I am not going to take the pith any longer. I am going to conclude my remarks and say: I beg to move.

Motion J agreed.

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, on behalf of my noble friend Lord Hunt, who is unable to be here today, I fully support the amendment of the noble Baroness, Lady Finlay. It was helpful to be reminded of the strong concerns expressed on Report; I also endorse the comments made by the noble Lord, Lord Warner. It is important to have clarification that the need to preserve Article 168 of the Lisbon treaty as part of retained EU law is recognised, and I look forward to hearing the Minister’s comments.

I commend the Minister’s willingness to work with noble Lords across the House on this important matter and his helpful role in facilitating this and working through the issues referred to by the noble and learned Lord, Lord Mackay. Article 168 places public health protection and health improvement at the epicentre of policy-making, and the Government’s assurances that our domestic law implementing EU public health requirements will continue to be interpreted by reference to relevant EU law, including Article 168, will be welcome.

The Minister’s assurance of the Government’s commitment to ensuring that the UK remains a world leader in public health following Brexit would also be welcome. I hope he will provide the House with this, to be noted for the record.

Finally, it is important once again to pay tribute to and place on record the work of the wide coalition of major public health bodies, medical colleges, charities and the wider health community in helping us, one hopes, reach a consensus on the way forward.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

I thank the noble Baroness, Lady Finlay, for bringing back this important amendment before your Lordships’ House. I do not think I have ever drunk as much tea as I have in the past week or so as I have met various noble Lords and noble Baronesses, but it has been worth it.

I shall be a little more specific in the words I read out because we need on this occasion to give noble Lords the exact words that I hope they require. Before doing that, I should pay tribute to the noble Lord, Lord Warner—to say that he has been spirited would perhaps be an understatement—and to my noble and learned friend Lord Mackay, who is right about there being legal advices and legal advices, but I would much rather have his advice than that of others.

Let me tell your Lordships a little more about the effect Article 168 of the Treaty on the Functioning of the EU will have after we leave. It is right that we pay tribute to the Faculty of Public Health and the 62 organisations that have contributed to keeping this issue at the forefront of your Lordships’ House’s discussion. An important coalition has been assembled. I would like to think that there is now genuine recognition on all sides of the Brexit argument that public health must be at the epicentre of our engagement. There should be no back-rolling in any of the health standards. The Faculty of Public Health has been at the forefront of public health, and will continue to be so. That is important to put on the record today.

Many noble Lords have spoken eloquently of the importance of Article 168, notably its role in a successful defence to the legal challenge brought by tobacco manufacturers against the introduction of plain packaging. We therefore recognise why noble Lords are keen to confirm the Bill’s effect in that area. The Government should have been clearer on this matter in previous debates and I welcome the opportunity provided by the noble Baroness, Lady Finlay, to provide that further clarity.

The Government fully expect that, after exit, Article 168 will continue to be influential to the interpretation and application of retained EU law. This may include the determination of legal challenges to which Article 168 is relevant, including the consideration of public health legislation before exit day. As was noted on Report in this House, although Article 168 is not a directly enforceable provision of the TFEU, it has nevertheless been influential on EU and domestic law in the area of public health. I reassure the noble Baroness that when retained EU law is interpreted and applied, any such influence will be preserved by this Bill.

The Bill is intended to capture EU law as it stands at exit day and, as we have previously discussed, incorporate it into domestic law. Clause 2 preserves domestic legislation that implements or relates to EU law, including that in the area of public health. It is preserved,

“as it has effect in domestic law immediately before exit day”.

This will include, for example, the effect given to the Standardised Packaging of Tobacco Products Regulations 2015 by the tobacco packaging case, which, in a sense, echoes the words of my noble and learned friend Lord Mackay of Clashfern. Similarly, Clause 3 incorporates direct EU legislation, such as EU regulations relating to nutrition and food safety into domestic law,

“as it has effect in EU law immediately before exit day”,

and Clause 5 provides that any rights, powers, liabilities, obligations, restrictions, remedies and procedures that were recognised and available in domestic law immediately before exit by virtue of Section 2(1) of the European Communities Act,

“continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly)”.

I had to get that exactly right; I hope it is. Therefore, any rights or obligations that have been drawn from Article 168 will be preserved as part of retained EU law.

Clause 7 is also important because it ensures that retained EU law is interpreted in accordance with relevant pre-exit case law. This means, for example, that domestic law implementing EU public health requirements will be interpreted by reference to relevant EU law, including Article 168. As my right honourable friend the Secretary of State for Health wrote on PoliticsHome on 18 April:

“Our guarantee of equivalent or higher standards of health protection and health improvement when we have left the EU is unequivocal”.


The influence of Article 168 of the TFEU on retained EU law, and existing duties such as those in the NHS Act 2006 and Article 12 of the International Covenant on Economic, Social and Cultural Rights will enable us to do this.

I am sorry that on this occasion I cannot therefore accept the amendment in the name of the noble Baroness.

[Lord Lansley (Con)]

Circumstances have not enabled me to participate in previous debates on this subject but I want to put one point to my noble friend. He has instanced the debate on standardised packaging; I was responsible for the initial consultation. That policy did not stem from a European Union initiative but from one in this country or, one might say, from my conversations with Nicola Roxon, the Australian Health Minister. We do not therefore depend on the treaty for the function of the European Union to lead on public health. We have done so inside Europe, as we have across the world, on issues such as the tobacco control regime, and I hope we will continue to do so. The practical, rather than legal, issue is how effective our continuing co-operation with other European Administrations, national and EU, will be in combating public health threats—for example, the spread of infections. That kind of activity is much more practical than it is legal.

[Lord Duncan of Springbank]

I thank my noble friend Lord Lansley for that helpful intervention. He is, of course, absolutely right that the judgment did draw upon an aspect of Article 168, but of course the principal driver was not the EU component; that was rather a contributing component and as such it will be available as a contributing component going forward. The second point my noble friend raises is an important one and I hope it will permeate much of the discussion we have had and will continue to have. There needs to be ongoing collaboration with our colleagues and friends in the EU; that must continue. We must learn lessons where we can, not just from the EU but more broadly. I would like to think, again, that where good ideas emerge in the wider world of public health we grab hold of them, take them to heart and move forward on that basis.

[Lord Dykes]

Bearing in mind that Clause 4 as amended has clear definitions of the protections that were required in the amendment, would it not therefore be possible for the Government kindly to consider reinforcing the certainty and security of the assertions by including the text, or perhaps a revised, shortened version of the text, in the new Clause 5? It would go in the Bill as subsection (1), paragraph (c) to the amended Clause 4. Would that not be a very convenient way of combining two certainties to reassure the public?

[Lord Duncan of Springbank]

I always welcome interventions of this nature. On this occasion I think that the Government position is clear—I hope so as I look to the noble Baroness—and provides the necessary and useful support and words of comfort. I think that on that basis it should be understood by all who read today’s remarks and engage directly with the Government on this matter that what they are seeking is provided for and will be available: as it is today, so shall it be after Brexit day. I hope that those words are of comfort to the noble Baroness on this occasion.

[Baroness Finlay of Llandaff]

My Lords, I am most grateful to everyone who has intervened. As someone who has felt passionately about tobacco control I am glad to be able to tell noble Lords that I am now involved in working with Hong Kong on its tobacco control measures. UK public health has indeed led the world in many ways and nobody wanted to see that jeopardised. I am particularly grateful to my noble friend Lord Warner for generously sharing some of the background to all this with me, and of course the noble and learned Lord, Lord Mackay of Clashfern, who gave me a tutorial on some of the issues around EU law shortly before we came into the Chamber.

I am confident that the Government’s reassurances today will offer the legal certainty that the sector is seeking; I am sure they will be warmly welcomed by the whole health community and all those organisations which signed up to the coalition. They are 62 major health and welfare organisations and it sends a very strong signal that this Government are committed to the health and well-being and individuals, of communities and of the country during the Brexit negotiations and after we leave the EU. It signals that future Governments must retain this as a highest priority. Therefore, I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

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

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

I thank the noble Lord, Lord Dubs, for moving his amendment and giving us an opportunity to speak about this further. We sometimes attach additional epithets to noble Lords in this House, such as “gallant” and “learned”. Perhaps the noble Lord, Lord Dubs, should be the “noble and compassionate” Lord. I appreciate what he is doing. It is for that reason that my noble friend Lady Williams and I have met the noble Lord and the noble and learned Baroness, Lady Butler-Sloss, on a number of occasions. The noble Lord, Lord Bassam, said that we must be clear about what we are trying to achieve. That has been the purpose of those meetings.

I will state very clearly what we are trying to achieve in the negotiations. The Government have been clear that when we leave the EU we will seek to maintain a close and effective arrangement, including practical co-operation with the EU and the member states on illegal migration and asylum. Combating illegal migration and having efficient and effective asylum systems will continue to be a priority on which we will work closely with our EU partners. As part of that arrangement, and subject to the negotiations, the UK will seek to agree with the EU a series of measures to enable unaccompanied children in the EU to join close family members in the UK or another EU member state, whichever is in their best interests. However, it is important to remember that any such agreement will require agreement and implementation by individual member states.

After the outcome of the negotiations is known, we will bring forward the appropriate legislation as necessary. At that stage this House and the other place will have an opportunity to be clear in their engagement with, and any desire to amend, that piece of legislation. The Government are very clear about what they are trying to achieve in the negotiations. We share the desire of the noble Lord, Lord Dubs, that family reunification rights for the purposes of considering claims for asylum and the systems to deliver them should remain in place once we have left the EU. There can be no dropped ball, diminution or loss—there needs to be continuity, seamless in its effect. It can be nothing other than that.

In my discussions with the noble Lord, Lord Dubs, we spoke about the Dublin III approach. The sad fact is that in many cases Dublin III is simply not fit for purpose. That is perhaps the greatest tragedy of all. Across the EU we look to that as though it sets a benchmark when in truth it is doing nothing of the sort—indeed, quite the reverse. In some instances there is opposition within member states to the functioning of Dublin III. Of course, Dublin III will evolve into Dublin IV, but Dublin IV will not come before the next European elections. That is unlikely simply because of the timetable. It is not for me to draw your Lordships’ attention to what we might expect in those elections but we must be cognisant of them. We have seen in election after election a growth in parties whose views about the wider issues of migration are perhaps not to be applauded and which are quite the reverse of the welcoming approach that we in this Chamber might believe needs to be stressed.

The danger is that we are recognising a benchmark inside the EU that even the EU itself does not believe is fit for purpose. We need to go beyond that. That is why I like to think that we are not seeking to measure ourselves against Dublin III but rather setting in place very clear measures which are safe and sure and address the very matters that the noble Lord, Lord Dubs, has raised. If we seek to use the EU as a benchmark, we will do a disservice to the very people who would need to draw on these elements. That might seem an odd thing to say, but noble Lords who have spent any time attending to how the Dublin III measure are evolving will recognise that that is one of the central problems.

I am aware that there are challenges ahead as we enter into the negotiations. A number of noble Lords have asked why this is not therefore placed in the Bill. What we are saying is that at the appropriate point these elements will be front and centre of a Bill before the other place and this House, offering exactly the opportunities that your Lordships would wish to have—at the right time. To bring them forward and try to put them into the Bill now—into what is, in effect, a pre-negotiation settlement—will cause us difficulties. That is why we have sought to be as forthright as we can about our intention, our ambition and our method. We do not wish to see these rights undermined or lost; we wish them to be sure and safe. It is for that reason that we have moved in this way. I appreciate that there is a desire to return this to the House of Commons, perhaps with the idea that we can again emphasise how exactly we will take these matters forward. That is your Lordships’ prerogative. I would argue that in the other place the same discussions may lead to a very different result, and that might send a message that this House might prefer not to be sent.

It is a difficult issue, because we are sending, I hope, a very clear message: the UK remains committed to the very elements that the noble and compassionate Lord has brought before us on this and a number of other occasions. We remain committed to them. They will be front and centre in our negotiations, and we have engaged directly with the noble Lord on this matter.

We have also recognised that when that point comes—when legislation or appropriate vehicles are required—there will be an opportunity, in both this House and the other place, to address the very matters that the noble Lord has raised today. On that note, I hope and wish the noble Lord will feel able to withdraw his amendment, recognising that there will be further opportunities for the noble Lord to fight with the same passion on this matter, as I do not doubt he will continue to do in the future. I hope, therefore, that he will withdraw his amendment.

[Lord Dubs]

My Lords, I am grateful for the support of Members of the House for this amendment. In a curious way I also thank the Minister for his support for the principle that I am trying to establish.

It seems to me that the clearest message of support for the amendment would be to pass it tonight. Anything else would look as if we were hesitating and not totally certain. I am sure the Minister and his noble friend Lady Williams are quite sincere in wishing to support the principle of the amendment. The signal we send, however, will be a different one. I do not see putting this in the Bill causing any difficulty. We ask only that the Government should have a basis for negotiating to achieve the end that we are talking about. If Dublin III gives way to Dublin IV, the Government will have the flexibility to negotiate on that basis. The proposition is clear, and I ask for the support of the House. I beg leave to test the opinion of the House.

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Baroness Smith of Basildon]

My Lords, there is little I can add that is new to this debate. I am grateful to my noble friend Lady Kennedy of The Shaws for raising these issues and I hope the Minister will make use of his customary courtesy to the House. When he responded at Second Reading and in Committee on these issues, there was a sense that he understands the concerns that were raised then, and indeed the issues raised today. When he spoke on 14 March, he was clear that there will be no impediment at the land border to the movement of people—no checks and no profiling, full stop. That was the first time that the Government had given that degree of clarity—I think my noble friend Lady Kennedy would recognise that—or sought to emphasise that. This is important, and the Minister will understand the great concerns being raised. We still have no clarity on the border issue. This House has already expressed a view on the customs union and I am sure that, as we debate Northern Ireland issues later on Report, we will deal with those further.

I hope that the Minister is able to address the concerns that have been raised about the common travel area and movement of people. He has a sense of deftness and understands these issues, so if he can address them today we would be grateful.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, I thank the noble Baroness, Lady Kennedy of The Shaws, for introducing this topic and other noble Lords for their contributions. I had a very pleasant cup of tea with the noble Baroness yesterday and I was pleased to learn that she hails from the Kennedys of Fermanagh, which was an interesting discovery. But it was not just a pleasant cup of tea; it was more important than that. We touched on what I believe are some of the key elements that have motivated these amendments, and they are, at heart, necessary to confront. The noble Baroness, Lady Smith, somewhat surprisingly, reminded me that I was indeed apparently the first person to give clarity on this issue, but I am very happy to reinforce the clear statement that there can be no racial profiling at a border, whether it be routine, quixotic or even accidental. That cannot be the policy or the direction; there cannot be even a hint of that going on at the border. I am hopeful that those further words might again give some contentment in that regard.

If I may turn to the amendment itself, the December joint report, at paragraph 54, confirms that the UK and Ireland can continue, as now, to work together on the movement of people. Building on this, the relevant chapter of the Commission’s draft withdrawal treaty text is green, confirming the policy is agreed. The key thing here is that the common travel area with Ireland is protected after the UK has left the EU. It is important to emphasise that this agreement is not just what we would like to see happen but actually what we have agreed so far. As a number of noble Lords will have noticed thus far, getting agreement is not always as straightforward as we would like. The Government are committed to turning the relevant chapter of the withdrawal treaty into legally binding text, so we will be doing that. This means that in the future, as now, the UK will not operate routine immigration controls on journeys within the common travel area. There will be no checks whatever for journeys across the land border between Ireland and Northern Ireland, nor between Northern Ireland and Great Britain. As I said earlier, this includes any aspect of what those checks might look like or be interpreted to look like. That is not what will be happening.

To touch on some of the elements raised, I think it is important again—and I will commit to writing to the noble Baroness—to set out the elements of the withdrawal agreement treaty and how they protect the common travel area. I will place a copy of that letter in the Library of the House so that all can read it and see exactly what we are stating.

[Lord Blunkett (Lab)]

Forgive me, this is not facetious, but the words that the Minister is using are so much clearer than those that have been used by his colleagues in government that I just wonder if there might be an internal seminar, so that we can get some of this clarity on the record more often.

[Lord Duncan of Springbank]

I will await that promotion when it comes. I hope that I am being as clear as I possibly can be. To be equally clear, these words do indeed represent the view of the Government. I am not an outlier in this regard; I am indeed speaking on behalf of the Government.

If I may, I will draw on some of the remarks of the noble Lord, Lord Dykes, about the historic element of the common travel area. It is an extraordinary outcome when you think about what had just taken place on the island of Ireland. To then create a common travel area, with all that that represents—a common travel area that survives to this day, albeit within the wider freedom of movement of the EU—is an extraordinary achievement, both for its time and for its longevity. It is a long-standing agreement; it protects unhindered the movement across the land border. I am also aware that it is also an integral element—not a symbolic but an integral element—of the Belfast/Good Friday agreement. That should not be underestimated.

My right honourable friend the Prime Minister has made it very clear, from the original Article 50 letter right through our position paper in August on Northern Ireland to her speech in Florence, that preserving these arrangements and a unique relationship between the UK and Ireland is a priority for future negotiations as well. The common travel area has proven to be resilient over the years, withstanding legal challenges, to which the noble Baroness referred, and new policy and political developments. It is a well-crafted arrangement—and in some respects, if only all legislation that we created could be as well crafted, we would be doing some service to the nation. It has been staunchly protected by all its members, not just the United Kingdom but Ireland—and it has been welcomed by the Crown dependencies as well. I have no doubt that it will continue to be so.

The high level of collaboration with Ireland and the Crown dependencies on border security, on strengthening the external border of the common travel area and on promoting legitimate travel within this special travel area will continue. The UK’s future approach to immigration controls for EEA nationals will be compatible with the common travel area, just as our approach to non-EEA nationals is now. Our approach to the common travel area is, of course, not reliant on our membership of the EU itself. These arrangements can be maintained after the UK has left the EU without express provision in the Bill. The common travel area was formed long before our membership of the EU and, I suspect, will exist long after.

The Government made clear during the Bill’s passage in the other place that the withdrawal agreement and implementation Bill will uphold the agreement we reach, including the protection of all the Northern Ireland and Ireland commitments in the joint report. That is, of course, a matter for the future Bill rather than the one we have before us today. However, I nonetheless hope that some of the elements that I have stated today will be clearly reflected in that future Bill.

Individuals travelling to the UK through Ireland will always be required to meet the UK’s immigration requirements. However, our excellent co-operation with Ireland helps to ensure that those who seek to abuse arrangements are not able to gain entry at any point in the common travel area, no matter which element we might be discussing.

I have just been handed a very helpful note, and I turn to the point raised by the noble Baroness. The word “routine” does not have a special meaning in the paper that was cited. It was not seeking to add any additional burden. It is simply saying that these are the methods that we have been using thus far and will continue to use. It is not seeking to add or put in place any additional elements. To the second question raised by the noble Baroness—the question of the obligations that fall upon Ireland itself—arrangements that we have within the common travel area will not interfere with those obligations which the Republic of Ireland has to its own citizens or to the citizens of the EU, but the nature of our future immigration status will depend on that second Bill, to which I referred a short while ago.

I appreciate that this has been a short debate, but it was an important one nonetheless. We recognise that the common travel area is not just a useful asset; it is a vital one. As the noble Baroness, Lady Kennedy, reminded us, the family commitments that stretch across those borders of long standing are very important. There is nothing that we will do that will interfere with that: that would be wrong and we will not be doing that. On that basis, and with the promise that we will send a letter and lodge a copy in the Library, I hope that the noble Baroness will be able to withdraw her amendment.

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

I thank the noble Baronesses for their contributions. I believe, and am comfortable saying, that when we exit the EU the corpus of EU law on which we will build our foundations will be a strong one. At our last gathering, I was able to give assurances on the working time directive, which I hope were welcomed on all sides of the House. The key aspect here is simple: we should not solely be looking towards the EU as we consider what is happening on the wider question of family-friendly employment.

I had a pleasant discussion earlier today with the noble Baroness on the key elements of the amendment. She knows that I am not able to give the words of comfort that she is looking for, but I am able to give different ones. They are not specific to the Bill but are, more broadly, about what the Government intend to do and how we will do it. I will iterate those in due course. For example, the work-life balance directive is at present in its very early stages in the European Union. Because of where it is in the process, there is every prospect that it will not have secured enough progress before the European Parliament rises for the elections. Thereafter it will have to be retabled and greater time spent bringing it back to its current state. I would much prefer that the elements contained in that directive were taken forward by the Government in good time and good order. Post Brexit, it must be our ambition not to await what others are achieving but to see the direction in which they are facing and move as quickly as we can. Your Lordships’ House, and the lower House, must be at the forefront of these endeavours.

I spoke in Committee about these policies not being barnacles on the boat. It is absolutely clear to me that they do not drag us back; they are integral to the engine that drives us forward. Equally, it is important that the committees of both Houses recognise their roles both in holding the Government to account and in casting their eyes as widely as they can to initiatives, policies and case studies that make a difference across the globe. There is much that we can learn, not just from the EU but from its member states. For example, it is not the EU itself but some member states inside it that are driving forward wider LGBT issues. Malta and the Netherlands are pushing far beyond where the EU stands, as are we ourselves. Looking at some of the wider gender equality issues, I would never paint where we are as rosy. Until we have reached absolute parity and certainty, there are not enough roses in the garden to say that. It is always a journey and we need to be moving toward that. We can learn lessons from examples across the globe. I hope that committees of this House and the other place are able to act as the antennae, seeing and hearing what is out there; to develop invaluable reports; and to hold the Government to account for recognising what those reports can achieve as we cast our eyes more broadly.

I cannot give the words of comfort on the amendment that the noble Baroness would like. In some respects, I am disappointed that I cannot. However, I commit, on behalf of the Government, to meet the noble Baroness, and to write to her and other noble Lords, setting out clearly and exactly what the UK Government intend to do in this area, where we are, what the rights are that we need to move forward on and how we intend to do that. I suggest that that happens regularly, not just once. The regularity and frequency has yet to be determined but I suggest that we have a dialogue about it. The noble Baroness will be aware that I am not the lead Minister on this, just the lead Bill Minister in this area, but I am committing, on behalf of my colleagues in the Government, to fulfil that obligation. I hope that will give some comfort. This is a journey and we are not yet far enough along. I am sorry to disappoint the noble Baroness on this occasion, but I cannot give her the words of comfort she would prefer to hear on the specifics of her amendment.

[Baroness Lister of Burtersett]

My Lords, I am very grateful to those who have spoken in support of the amendment, particularly the noble Baroness, Lady Altmann, from the Benches opposite. They all used the word “reassurance” and, as he said, the Minister does not feel able to give me the reassurance I was seeking. I understand that, but welcome the fact that he has tried to go as far as he can. In a sense, he has implicitly acknowledged the case, even if he is not giving me reassurance. At the outset, I made it clear that this in no way stops us looking to other countries as well as to the EU, but we are—and will still be—a member of the European family. I will always be a European, as we all will, and that is where we should look first.

I welcome the Minister’s commitment on behalf of the Government. It is not just about meeting with me. I suggest a formal or informal all-party grouping of Peers who have supported the amendment, such as the noble Baroness, Lady Altmann, and organisations such as Working Families, to take this forward. Once the Bill is out of the way, perhaps we could have a meeting to discuss the appropriate mechanisms to do that. None of us can speak on behalf of committees and so forth, but if we are able to map out a possible way it would give us something.

I am disappointed, but I did not expect that much. I take a few crumbs of comfort from what the Minister has said and I am grateful to him. I hope that, once the Bill is out of the way, we can use those crumbs to build something of a loaf. With that dreadful metaphor, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Warner (CB)]

My Lords, I will move Amendment 17A in my name and those of the noble Lord, Lord Hunt, and the noble Baronesses, Lady Jolly and Lady Finlay. The purpose of the amendment is to improve the legal protections of public health post Brexit. It does that by ensuring that those parts of Article 168 of the Lisbon treaty that are concerned with public health are part of retained EU law after exit day. I will try to explain briefly why this is an important matter of such concern to so many people involved with public health who have briefed your Lordships throughout proceedings on the Bill.

Clause 4 of the Bill includes within retained EU law directly enforceable provisions of the EU treaties. The legal advice that I have been given by three professors of European law at the Universities of Sheffield, Essex and Cambridge is that it is not clear whether it includes other provisions of the EU treaties, such as Article 168 of the Lisbon treaty. As far as I can see, the Government have been unwilling to say that it does cover those other provisions. So far on the Bill, Ministers have simply asserted that the amendment is unnecessary because our public health policies are excellent and often better than many in the EU. That, of course, fails to answer the exam question: is Article 168 part of retained EU law under the Bill? The latest letter to Peers from the noble Lord, Lord O’Shaughnessy—whom I am glad to see in his place—which incorporated Jeremy Hunt’s article, still fails to tackle the exam question.

Why am I making so much fuss over Article 168? I will not repeat all I said in Committee. However, I will remind the House of Mr Justice Green’s High Court judgment on 16 May 2016, on plain packaging of tobacco products, in which, at paragraph 441, he emphasised that Article 168 places public health,

“at the epicentre of policy making … and how ‘all’ EU policies must ensure a ‘high level of human health protection’”.

This was a significant element in his finding in favour of the Government, and Mr Justice Green’s findings were further endorsed by the Court of Appeal, rejecting the tobacco industry’s appeal in its judgment dated 30 November 2016. At paragraph 201 of the Court of Appeal’s judgment it says:

“The judge was entitled to place the weight he did on the public health objectives of the Regulations: his approach was in line with the high level of human health protection provided for in EU law”.


It is one of life’s little ironies that this Government have benefited from these EU protections. Two clear and reasonable inferences can be drawn from the Court of Appeal judgment. First, the public health protections in Article 168 should be regarded as part of retained EU law after Brexit, and secondly, the EU legal public health protections may well be more robust than those in UK law.

I turn briefly to the level of public health support for this amendment. The uncertainty caused by the Government’s approach has united the Medical Royal Colleges and wider health community, all of whom have given consistent support to this amendment. To date, 52 organisations, including the Royal College of Physicians, the Faculty of Public Health and many major charities such as Cancer UK, Diabetes UK and the Alzheimer’s Society are backing the amendment. They do so, in my judgment, because they fear that after Brexit, hard-won legal protections for public health will be sacrificed in a rush to do trade deals. Given the speeches of some Ministers, who can blame them?

The simplest way to satisfy all these concerns is to put matters beyond legal doubt. We are well past the time for further warm words from the Minister. Matters need to be made clear in the Bill by an amendment along the lines of Amendment 17A. I provided the Minister with a little more time to think about this at our meeting last week by deferring consideration of the amendment until today. I hope that he has used the time wisely and that he can now agree to accept it. I beg to move.

[Lord Duncan of Springbank]

I have some points which may be helpful to make at this moment, before the full discussion gets under way, and I may seek to clarify our position. However, I will of course respond to the wider debate in due course—I am not trying to cut off any of the points which might be made. The noble Lord, Lord Warner, was indeed kind to me last week; we sat down and he agreed to allow me a greater amount of time. I will therefore say words which may bring him some comfort with this point in mind.

Public health is a vital issue—there is no doubt about that. I accept that we have not thus far provided sufficient assurance to the noble Lord or to his noble backers on the issue of public health. I am therefore grateful that we have had this extra time to look at the issues that underpin the matters before us today. I have used that time wisely in meeting with both the noble Lord, Lord Warner, and my noble and learned friend Lord Mackay of Clashfern. I thank them both sincerely for their time.

--- Later in debate ---

[Lord Duncan of Springbank]

This has been a short debate but an instructive one. I am somewhat sorry that we have not had longer to share with noble Lords the remarks that I made this afternoon. The key thing about the statement I made earlier, and I suppose it was one of the aspects at the heart of the concluding statements from the noble Lord, Lord Hunt, was about the notion of trust. I am tempted to say, as I used to say many years ago, “You can trust me. I’m a doctor”. but my doctorate is in palaeontology so I am afraid that that is perhaps not quite as useful in this regard. The important thing is not that noble Lords trust the Government or, indeed, any Government, but rather that the case law itself can be used to hold that Government to account.

In the case cited, the UK Government were the principal beneficiary across the entire EU when it came to the packaging of tobacco products. As the noble and learned Lord, Lord Mackay of Clashfern, confirmed, we did not explain well enough that these particular rules and aspects of Article 168 are and will be available post Brexit. They will allow for the Government—if need be—or others, to be challenged, drawing on the elements of Article 168 as they stand today and as they will stand after Brexit.

In truth, the Government are broadly neutral on the concept of the amendment, primarily because we recognise that the functionality of Article 168 will not be undermined by what happens as we go forward. For that reason, I am afraid that I am not able to give greater comfort on this occasion. Indeed, should the noble Lord wish to test the House, I shall in due course suggest that he does so.

However, before I get there, it is important to stress that the UK Government were a principal beneficiary of the Article 168 approach and the concept of public health being at the epicentre of law-making. Due to the broadly established case law and, ultimately, the interpretation that will rest in the hands of the domestic courts, I believe that we are in a strong position. I know that matters of wider trade were raised, and there will be opportunities to discuss those as we look at these questions at another time, but as far as the amendment is concerned, I believe that as my noble and learned friend Lord Mackay affirmed, we are now in a good position to offer certainty, which is worthy.

--- Later in debate ---

[Lord Grocott (Lab)]

I very much agree with the point that the noble and learned Lord has made. It may not be within the normal rules of a Report stage debate to have the kind of circular arguments that we have had but, without having the Companion in front of me, I am pretty certain that I am accurate in saying that this is precisely the kind of occasion when it is appropriate to consider a matter again at Third Reading. The rules on when you can bring forward amendments at Third Reading are quite restrictive but, where the Government effectively announce a change of policy or, at the very least, give a further clarification which this side of the House has no opportunity to consider in detail, I cannot see that anyone loses any face whatever. It is entirely consistent with the way in which Third Reading operates for the Government to say, “We may or may not be able to accommodate it but we’ll look at it again at Third Reading”.

[Lord Duncan of Springbank]

For the good of my own health, we will reflect on this matter and we will be able to come back to it in due course. In the meantime, we will ensure that the intervention is circulated widely so that noble Lords can see exactly where we stand on this matter. I hope that that is helpful.

[Lord Warner]

Well, my Lords, if you just sit here, things work themselves out. I am grateful to the Minister for his intervention and I am extremely grateful to the noble and learned Lord, Lord Mackay of Clashfern, for all the help that he has given behind the scenes and to me personally on this matter.

What I have to say to the Minister is aimed not so much at him as at a few of his colleagues. They have been a bit slow in coming to the party. These legal judgments have been around for quite a long time and one would have expected DExEU to have mastered these things at an earlier stage. However, in the circumstances, and with my thanks to the Minister for showing flexibility while he was on the Bench, as well as in his interventions, we will come back to this at Third Reading. I will make sure that all the backers of the amendment have time to read everything, and I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, I wish to add a couple of points. First, are discussions progressing on the possible inclusion in the Bill of a schedule detailing these areas of concern? Secondly, the noble and learned Lord, Lord Wallace of Tankerness, said that a solution should be agreed, not imposed. We should heed those words. I again ask the Minister: as regards reaching agreement on these issues, to what extent does he have in mind involving the legislatures rather than just the devolved Governments?

The Minister has had notice of my next point. I would like to correct something that the noble and learned Lord, Lord Keen, said in the House last week. He said that there were,

“about 153 areas in which, upon our leaving the EU, competences will return and touch upon areas of devolved competence. These are areas that the devolved parliaments and assemblies previously had no engagement with because they lay in Brussels”.—[Official Report, 21/3/18; col. 334.]

I have since written to him because that it not completely the case. As it works, the memorandum of understanding provides that, in matters of devolved competence, the UK Government consult the devolved Administrations to agree a common UK position on matters before the Council of Ministers, and then defend that position in the Council. Indeed, as we just heard, occasionally devolved Ministers will do that and represent the UK. However, whether it is a UK Minister or a devolved Minister there, they speak in this case for an agreed UK position, not just a UK government position. It may therefore be helpful if the Minister confirms that understanding, which is undoubtedly how the devolved Governments see it. What has been said is right: the spirit to reach accord is there. However, perhaps for clarity, it would be good if that could be confirmed.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

Perhaps noble Lords will forgive me for a moment or two while I stretch my back, which is just a little bit tight. Now I am fighting fit. I point out to the noble Lord, Lord Adonis, that it is because I am carrying the heavy weight of Brexit on my shoulders.

I thank the noble and learned Lord, Lord Hope, for bringing forward this amendment, and all noble Lords who have introduced some interesting debate into the discussions today. It will be useful for us to begin by looking at the deep-dive process itself, whereby the devolved Administrations together with the UK Government have pored over the various 150 or so areas to which my noble and learned friend Lord Keen referred. They have been guided, as the noble and learned Lord, Lord Wallace, noted, by a suite of agreed principles, which indeed from time to time make reference to such concepts as the UK market itself, trade and various other obligations. I understand that each of your Lordships should have had in their postbox or email in-tray a series of emails from my noble friend Lord Bourne which set out the principles themselves and the areas in which they intersect with the policy matters.

It may be useful if I give a flavour of that. It struck me, as I was discussing with various officials in my department and others, that we have perhaps not done that before to give your Lordships a sense of the sheer scale and magnitude of the engagement thus far undertaken. There is a certain sense sometimes that we are quite dismissive of the devolved Administrations, when nothing could be further from the truth. To give your Lordships just a flavour of that, in the area of fisheries there have been six full days of discussions between the devolved Administrations and the UK Government—17, 18, 23 and 24 January, and 6 and 7 February. On environmental quality, to take another example, there was a whole-day discussion on ozone-depleting substances and fluorine gases on 31 January, and two full days at the end of January were spent examining chemicals and pesticides. It is useful to recognise that this approach is unprecedented. Its purpose is, again, one of respect. I can see that the noble and learned Lord, Lord Wallace, is ready to jump up. He is welcome to do so—it will give me a chance to sit down.

[Lord Wallace of Tankerness]

What the Minister is saying is encouraging. For the sake of argument, let us take fishing. Have any of these meetings between UK officials and officials from the devolved Administrations involved members of the Scottish Fishermen’s Federation? Stakeholders obviously have a practical view on where some common arrangements are useful and where they are not.

[Lord Duncan of Springbank]

I wish I could answer that question in the affirmative, but the answer is no. Before each meeting the devolved Administrations, with the UK Government, have engaged in direct consultation with stakeholders. However, the stakeholders have not been inside the room. None the less, what they bring to the table is very much understood. I develop upon these parts because, as the noble Lord, Lord Wigley, pointed out, it is important that when we consider the question of agriculture there is no suggestion that, although agriculture itself is one of the headings, everything in agriculture will remain part of that. To some degree, what noble Lords had in their in-boxes, which was simply entitled “Agricultural funding”, was a little unhelpful. Underneath that rests each of the areas where there is expected to be a necessary common framework, and indeed a whole range of areas where there would not need to be a common framework because it would be fully devolved from the get-go. To some degree, there can be a result of some misunderstanding contained in that approach. Again, that is why it is imperative that we examine every single aspect when we have these deep dives, which are ongoing; they have not finished yet.

--- Later in debate ---

[Baroness McIntosh of Pickering]

Can my noble friend confirm that it is the Government’s intention that this should happen by primary legislation?

[Lord Duncan of Springbank]

Yes, that is the intention. We will move forward with this through primary legislation in each of the common framework areas. On that basis, I hope that the noble and learned Lord, Lord Hope, will feel able to withdraw his amendment.

[Lord Hope of Craighead]

My Lords, I am extremely grateful to all noble Lords who have contributed to the debate and to the Minister for his few words in his response. Of course, legislation may contain enabling powers but we do not know yet what the legislation he is promising will look like. If it is simply a Bill with a lot of Henry VIII powers in the area concerned, it will not advance the argument at all.

I am grateful to the noble and learned Lord, Lord Mackay of Clashfern, for enlarging on the points he made last week. I am glad that my amendment has given him the opportunity to emphasise again the points he has made and his valuable contribution to our debate. He said that if his approach is correct then my amendment ceases to have any purpose. Of course, he is right, because my amendment does not look at primary legislation; it looks at the procedure that would be followed if the mechanism to be used is to be by delegated legislation, in which case we are talking about the consent not of the legislatures but of the Administrations—that is, of Ministers. At the moment, we have in the amendment that was before us last week—the amended form of Clause 11—a promise of consultation. Many noble Lords who have spoken in support of my amendment have emphasised the importance of consent, which is the crucial matter. As the noble Lord, Lord Liddle, said after his careful analysis of what we are really talking about: consent is fundamental. That is the background to what I am submitting.

There are one or two scattered points which I might mention. On the contribution of the noble Lord, Lord Kerr of Kinlochard, the noble and learned Lord, Lord Wallace of Tankerness, was absolutely right. Proposed subsection (2) of my amendment is based on an agreement reached in October last year at the Joint Ministerial Committee on EU Negotiations. The wording is exactly as it was framed in the agreements, and that is the point from which we are moving forward. One could debate the language, but I think that the time for doing so has passed.

I thought that the contribution of the noble Lord, Lord Wigley, about the attitude of the sheep farmers was very helpful, and we have heard similar remarks about the position as regards fishing. I do not think that the position of the hill farmer in Scotland is very different from that which was described by the noble Lord. However, there could well be differences in the way that sheep are managed in England and the way that they are bred and moved south in Scotland and east in Wales—they are moved across the United Kingdom before being exported somewhere else. I can see, therefore, that there could be detailed disputes about what the Welsh, Scots and English would want in framing a UK-wide market for the handling of sheep stock. To attempt to create uniformity in areas as sensitive as this may be a mistake, and it may be that that is where the sticking points are in the discussions. I hope very much that one can get to the point where these matters can be agreed without resorting to dispute resolution.

As the noble Lord, Lord Wigley, also pointed out, in a few years’ time, when we move beyond the Clause 11 procedure and the time limit has disappeared, we do not want to have to start these arguments all over again. We want to resolve this at the beginning in the creation of the market.

It is difficult to take the point further because we do not really know the detail of the disagreements before us. However, I suggest to the Minister that it would be a great help if, before Report, a letter could be passed to those who have taken part in the debate explaining the procedure that the Government intend to use in the creation of these frameworks. I would be very pleased if they were to adopt what the noble and learned Lord, Lord Mackay, has suggested, and it would be very helpful to know that that is what they propose before we start looking at this again on Report. If they do not propose to do that, we need to know what the alternative is and how consent is to be built into it. In the light of the very helpful response from the Minister, and of what I have said so far, I will leave the matter there for the time being. I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

Wednesday 14th March 2018 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, this has been an interesting debate. I hope it has been helpful for the Minister.

I made a comment at Second Reading that in preparing for Brexit we should look at the detail—that the fine print was too important to be left to those who had no doubt—and I expressed the hope that Ministers would recognise the expertise in your Lordships’ House. Indeed, Members in the other House said exactly the same.

At Second Reading, the response of the noble Lord, Lord Callanan, expressed optimism in that regard. If ever there was a time to listen to the expertise in your Lordships’ House, it has been tonight in this debate. We have heard from a former Secretary of State, the noble Lord, Lord Hain, the noble Lord, Lord Murphy, the noble Lord, Lord Patten, with his vast experience of Northern Ireland, and the noble and right reverend Lord, Lord Eames, who made a powerful speech. We heard from my own colleagues, including my noble friends Lord Browne—he and I were Ministers together—and Lord Dubs. I feel somewhat nervous seeing my two former Secretaries of State for Northern Ireland sitting together, watching over me and looking at my back.

Noble Lords have raised pertinent issues tonight that go to the heart of what Brexit is about. The Northern Ireland Good Friday agreement was hard fought and hard won and no one in the House should doubt the importance of how well it has served us. We have had a long debate and issues have been raised tonight purely through people’s knowledge and their concern for what could happen if there is a hard border. I appreciate the points made by the Government about the protection of the Good Friday agreement. I welcome to his place the Minister who is responding tonight but at Second Reading the response of the noble Lord, Lord Callanan, did not refer once to Northern Ireland although the issue was raised several times. Clearly that was an error, a mistake, because there were a great deal of issues which had to be talked about. However, I am sure the Minister will understand the frustration at the lack of detail from the Government on what happens next.

The point was made earlier that these amendments should not be necessary. My noble friend Lord Browne of Ladyton said that we were holding the Government to account for the solemn commitment they have made and to do what they have promised to do. The Government and the noble Lord at the Dispatch Box have been clear on Northern Ireland: they support frictionless trade, they want a soft border and they support the Good Friday agreement. The noble Lord has been clear that that is the Government’s objective. What has never been clear, and has led to the debate tonight, is how that is to happen.

We heard from my noble friend Lord Hain, when he opened the debate, that there is over 300 miles of border. My noble friend Lady Kennedy said that 30,000 commuters cross the border daily—including for schools and hospital visits—over 400 commercial vehicles cross each month, and 40% of container movements to the Republic of Ireland go through Northern Ireland. There is a huge issue to address and a commitment is required—not, “We want this to happen” or “We believe this will happen”; it has to be an explanation of how we can make it happen.

My noble friend Lord Browne and the noble Baroness, Lady Suttie, referred to paragraphs 49 and 50 of the joint report produced in December, which are quite clear about why there should be no hard border, but that contradicts government commitments. The Prime Minister has referred several times to her red lines—no single market and no customs union—yet here we are talking about full regulatory alignment. The two are contradictory and that is why some of these concerns have arisen.

Most of the points have been covered in the debate and there is little of great substance that I can add, but I would like to make two points. I do not know if the Minister is aware of the follow-up letter to Karen Bradley signed by noble Lord, Lord Boswell, chairman of the House of Lords European Union Committee, on UK-Irish relations. In paragraph 52 the noble Lord accepts that,

“a degree of constructive ambiguity can be helpful during negotiations”.

He understands that, but he goes on to indicate that we need clarification from the Government of their understanding of what is involved in that December agreement. The European Union has come forward but we have not seen what the Government’s understanding is of how it will work. What does “full regulatory alignment” mean? I think I understand what it means, but the Government seem to believe something different.

The letter also refers to technology. The Government have said several times that they can deal with the border issue by using technology. There are grave doubts about that, as we have heard from other noble Lords in this debate. The letter from the EU Committee reminds the Secretary of State that,

“there is a need for realism … There is also a distinction between identifying solutions that are theoretically possible and applying them to a 300-mile border with hundreds of formal and informal crossings”—

a situation similar to that between Sweden and Norway—

“and the existence of which is politically divisive. Any physical infrastructure at the border would be politically contentious and, in the view of the PSNI, a security risk”.

In our long debate today we have not talked about the security issues, but the Minister who is to respond has to understand that unless he can provide a solution to how there will not be a hard border in Northern Ireland, there remains a security risk to those who fought the hardest to secure peace, a point made very powerfully by the noble and right reverend Lord, Lord Eames.

Finally, the ideological position on Brexit must be put to one side. In the Mansion House speech made by the Prime Minister just a couple of weeks ago, she showed that she is prepared to take what I suppose is a pragmatic eraser to some of those red lines and smudge them a bit—make them slightly pink—as she has done on the agencies. The time has come when I hope the noble Lord can give the Committee some confidence that the Government understand why these concerns have been raised. It is not good enough simply to say that this is what the Government want; they have to show the intent of how it can be achieved.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

There is a lot to be going on with this evening. I thank all noble Lords for their wide-ranging contributions. I hope that I will be able to do justice to the amendments before us, but let me begin by making a few general observations. We have in this Chamber tonight a number of the architects of the Belfast agreement. The word “architect” is often used. Architects create edifices which we may gaze at, but in truth the noble Lords present in this Chamber were not so much architects as mechanics. They created an engine that needs to be maintained and taken care of. It cannot be left alone in perpetuity; it requires tender loving care on every occasion. That is why a number of the points which have been raised go back to the Belfast agreement.

Let me be frank: the Belfast agreement remains the cornerstone of the United Kingdom Government’s policy as they approach Brexit. Further, the Belfast agreement is enshrined in international law, so it has a basis that is broader than simply membership of the EU. A number of noble Lords have made the point that it is our membership of the EU which was a factor in the agreement, and I do not think that that logic can be faulted. Equally, however, a great responsibility now rests with each of the partners as we address the reality of Brexit. That responsibility rests equally with the Government of Ireland, the Government of the United Kingdom and the European Union. That is why when we look at the joint report which was published in December, we see that at its heart is a recognition of each of the elements that we have talked about in this debate.

The noble Lord, Lord Kerr of Kinlochard, talked about the response of the EU to that report going forward. If I were being very frank, I would express a degree of disappointment in that for one simple reason. Of the three options that were set out in that joint report, the EU lawyers and negotiators have chosen to take forward only one into the text that we are confronting today. I believe that that is unhelpful.

[Lord Liddle]

My Lords—

[Lord Duncan of Springbank]

Perhaps I may make some progress but I will return to the noble Lord if he will allow me. We have had a very wide-ranging discussion and we will come back to his point.

As we go forward, I want to stress again that the key thing which the Government must achieve in the negotiations is an equitable, sensible and sustainable solution. A number of noble Lords have referred to certain elements which must and will appear in subsequent Bills, whether they are questions about agriculture, fisheries, broader trade or electricity. All these will fit in sensibly to those parts and the withdrawal agreement and implementation Bill will afford an opportunity for noble Lords to address all these particular points. We as a Government are determined to ensure that all the commitments on Northern Ireland and the Republic of Ireland set out in the joint report are turned into legally binding text—not just one of them. Each of them has to be a component part. All the parties involved must recognise that, to ensure that it is indeed the case. Further, we have been clear that in all circumstances we will protect the UK internal market. The noble Lord, Lord Empey, was very persuasive in the way that he set out the reality of the market as it affects the Province of Northern Ireland, and we cannot lose sight of that. Nor can we see a border suddenly appear down the middle of the Celtic or Irish Sea; that in itself would be wrong. We therefore need to find, along with the EU, an approach that works.

I turn now to the remarks made by the noble Baroness, Lady Kennedy of The Shaws. In some ways the points I am going to make echo those of the noble Lord, Lord Empey, because in certain respects the key thing will be for the two respective Governments to ensure that they create a situation in which there is a disincentive to abuse the border. That will be the first step. On the points raised by the noble Baroness about the physicality of checks and the reality of what they might look like, I wanted to be very clear about what I would say in my response, so I scribbled a note for my officials in the Box in order that I would not in any way stray on to thin ice. To be clear: there will be no impediment at the land border to the movement of people—no checks and no profiling, full stop. That is the ambition and the policy of the United Kingdom Government.

Going forward from that, I shall address the points made by the noble Baroness, Lady Smith of Basildon. She raised the question of regulatory alignment, which was covered in the joint report. It is important to recognise that alignment is about pursuing the same objectives. As my right honourable friend the Prime Minister stated in her Florence speech, it is about achieving the same goals by the same means or achieving the same goals by different means. In many respects, as a former Member of the European Parliament, I am familiar with that approach. It is like the difference between producing a regulation and producing a directive. A directive sets out clearly what the ambition should be but gives greater latitude to those to reach the particular ambition. A regulation does none of that. It is set in stone and in law and it must be followed. The noble Baroness will recognise that in the negotiations it will be necessary for both sides to achieve an understanding of what that will mean. That is because, in truth, it will affect both sides and it will disproportionately affect Ireland over the United Kingdom. That is why the negotiations will be conducted on a very sensitive and sensible footing. I do not impute the sinister motives raised earlier by the noble Lord, Lord Liddle.

[Lord Liddle]

My Lords—

[Lord Duncan of Springbank]

I should like to make some progress, so I hope that noble Lords will forgive me.

[Noble Lords]

Order!

[Lord Duncan of Springbank]

We have been here for some time and there has been a wide-ranging discussion. I hope that I will be forgiven if I seek to make a little progress.

[Noble Lords]

No!

[Lord Duncan of Springbank]

Well, I will make progress without the forgiveness of noble Lords on this occasion.

On Amendment 187A in the name of the noble Baroness, Lady Doocey, and Amendment 215 in the name of the noble Lord, Lord Browne of Ladyton, the joint report makes clear the Government’s commitment to avoiding a hard border, including any physical infrastructure or related checks and controls—a point made on more than one occasion by my right honourable friend the Prime Minister, most recently in her speech on 2 March. That is the policy of Her Majesty’s Government. We have put it before noble Lords as a statement of the policy; the interpretation of it must rest in noble Lords’ hands, but that is the policy we put forward.

Amendment 198 was introduced by the noble Lord, Lord Hain, in a very expansive and careful manner; I believe the entire House appreciates that. The Government made clear during the Bill’s passage in the other place that we will include an appropriate provision in the withdrawal agreement and implementation Bill iterating each element of the agreement we reach, including the protections set out in the joint report. Passage of the implementation Bill will provide an opportunity for noble Lords to scrutinise the specific provisions envisaged in today’s amendment as they appear in that Bill. There will be an opportunity at length, I hope, to address these point specifically.

I am conscious that the issues raised by the noble Baroness, Lady Suttie, require some attention. As I say that, I am conscious that the important issue she raised is about how we ensure that the children of Northern Ireland—indeed, of the entire United Kingdom—understand what we do here, not just in your Lordships’ House but in the other place too. To some degree, explaining what we do and why we are trying to do it is incumbent on each of us. The key thing will be ensuring that children can be part of that ongoing discussion and dialogue and see that making laws is not an easy process, responding to democratic challenges is not simple and sometimes there will be positions that are challenging to hear but none the less must be taken forward. A number of noble Lords have raised the issue again of the nature in which the Brexit vote took place.

I listened to the remarks of the noble and right reverend Lord, Lord Eames, who can often calm the House with his careful and considerate remarks. He captured that very well when he reminded us of the challenges we face in trying to move this forward. We need to be careful because a generation awaits the outcome of what we do here today and what the Government do in ongoing negotiations. There is no doubt about that. That is why, as I have said on more than one occasion in your Lordships’ House, the key must always be to secure an Executive in Northern Ireland who will be part of that process. Those voices are missed from the processes we are taking forward at this time.

As we give consideration to the appropriateness of the amendments, I am also aware that there will be opportunities for certain aspects of them to be addressed more head-on as we move through the negotiations. In putting these points before noble Lords, I hope I appear to have been, in some respects, more focused on the amendments than the broader discussion, but I do not doubt that there will be opportunities for further broad discussion. On this occasion, I hope that the noble Baroness will find it appropriate to withdraw her amendment.

[Lord Liddle]

Before the Minister sits down, I think he will allow me to make my point now. I want to say how much I welcome his tone and the spirit in which he has approached the House on this. I think he is a very constructive Member of the Front Bench opposite. In that context, I want to raise my concerns.

I am on the EU Select Committee. We have taken a lot of interest in the Irish question and produced reports. I am very concerned by the fact that the Government produced their proposals on a customs partnership last August and made a commitment in the December consensus, but there is absolutely no evidence that the Government have come forward with any alternative proposals on the border to those of the Commission. In circumstances where they have had all this time and no alternative proposal has been produced, a reasonable person can conclude only that the Government have concluded that there is no alternative to remaining in the customs union and the only way they have of trying to spike being cornered in this way is to try to get the EU 26 to tell the Irish that they have to back off a bit. Is that sinister? After all this delay and the lack of information on what the Government are doing about the border, it is not sinister—it is a reasonable conclusion.

[Lord Duncan of Springbank]

I thank the noble Lord for his final comments and I am sorry if I appeared to lack politeness in not allowing them earlier.

There are negotiations that are yet to come. I do not believe it is useful in negotiations to place all your cards face up. In concluding, if I may, I will cite the words of the great country and western singer Kenny Rogers. In negotiations,

“You’ve got to know when to hold ’em, know when to fold ’em,


Know when to walk away, know when to run”.

[Lord Hain]

I welcome the noble Lord, Lord Duncan, to his post as a Minister and commend the empathy he has shown in responding to the debate, which I think the whole House welcomes.

I will not respond to the whole debate—the hour is too late—except to commend the marvellous, passionate eloquence of the noble and right reverend Lord, Lord Eames. He would be able to get me to follow him on any theological journey, which is asking a lot of me. However, I regret that the Minister has not really responded to the questions put to him. For example, the Brexit Secretary said recently that there would be no problem monitoring imports and exports between Northern Ireland and Ireland after Brexit and there would be no need for a hard border because we already do this for VAT purposes. But we can do it for VAT purposes now only because we are in the European Union’s VAT Information Exchange System—VIES. Outside the EU, we are out of that tracking system. Then, on Sunday, the Chancellor admitted that there was not an example in the world of the kind of technological open border alluded to by the Minister. Who believes for a minute that it can be done, apart from the Foreign Secretary—who thinks that South Armagh and Louth are the same as Camden and Westminster, except with more Guinness?

The Prime Minister insists that Brexit means the UK leaving the single market and the customs union, which I do not accept for a moment. We can Brexit and stay in the single market and the customs union; other countries are outside the European Union but are in either the customs union or the single market. But if she were right, the UK Government in turn would be obliged by WTO rules to enforce hard border arrangements on the island of Ireland because of the change in their relationship with the EU. Therefore, to keep the border open as it is today, there is no alternative to Northern Ireland—and, by implication, the UK—remaining in both the single market and the customs union. I regret that the Minister, despite his empathy, has not really answered that point. I will not press my amendment.

European Union (Withdrawal) Bill

Lord Duncan of Springbank Excerpts

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

[Lord Tunnicliffe]

My Lords, it is a great shame that there is not more of a consensus between the two—or three—parties on the issue of refugees. We have debated it much over the years. Recently, we have got to what I would loosely call an uneasy peace, which is essentially based on my noble friend Lord Dubs’s Section 67 and Dublin III. That has produced modest numbers, but there are very real numbers of people meeting very real problems.

The noble and learned Baroness, Lady Butler-Sloss, put her finger on it. The rights individuals have as a result of Dublin III must be maintained. I hope the Minister will be able to assure us that the Government will either accept these amendments or make a very firm commitment to assure us that, one way or another, the effect of Dublin III will be maintained after Brexit.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

I thank noble Lords who have contributed to this evening’s debate, particularly the noble Lord, Lord Dubs. I think the word “noble” is appropriate in so many different ways in the manner that we have been discussing this matter this evening.

It is a number of years since I worked for the Scottish Refugee Council. At that time, I was struck by a number of challenges experienced by those fleeing and seeking refuge across the globe. I was very much aware of the challenges experienced by refugees and asylum seekers; I draw a distinction between the two, as does the law. My frustrations were also manifest as a Member of the European Parliament at how the Dublin regulations were discussed, ultimately moved towards law and, frankly, not enforced in the manner in which I believe they should have been across the EU. While we often look towards Brussels for leadership in these areas, quite often we are disappointed by what happens when we move from the high words which can be found in certain of the discussions towards the realities of delivery, which can be quite different.

I particularly thank my noble friend Lady Stroud, who has again helped us realise some of the realities which we face. She is right to point out one of the greater challenges, which is finding unaccompanied minors in a difficult situation which they have not chosen to be in.

I turn specifically to the amendment. Noble Lords will be pleased that my noble friend Lady Williams is in her place beside me. I believe that on a number of occasions she has affirmed the Government’s commitment to ongoing support for those who are seeking asylum or who fall under the refugee convention. However, we must remember that the Dublin regulation is not, and never has been, a route for family reunification. It is a mechanism to determine the member state responsible for consideration of an asylum claim. Dublin confers no long-term right to remain in an EU state, whether on the grounds of family relationship or on any other basis. If someone is transferred under Dublin to the UK to join an asylum-seeking family member, should that asylum claim fail, they can be removed to their home country. In the UK, around 60% of those who claim asylum are found not to need protection.

The Dublin regulation rules are fundamentally different from the family reunion procedure in the Immigration Rules, which allows refugees under the Geneva convention, or recipients of humanitarian protection, to bring their close family members to the UK, where they are entitled to leave to remain. Furthermore, the Dublin regulation does not create refugee family reunion rights because it deals with asylum seekers, not refugees. Once a person is recognised as a refugee in the EU, they are no longer in scope of the Dublin system and the family unity provisions in the regulation do not apply.

More broadly—this is perhaps worth stressing as we consider movement outside the EU—the system has reciprocal effect in all participating states. It is a two-way process which governs the movement of asylum seekers into and out of the UK. Unilateral rules that place an obligation on only one state do not work. They need to be reciprocal.

Going forward, we seek a relationship with the EU that will address the entire spectrum, not just asylum seekers but refugees and the wider question of illegal migration, not solely on the basis of family reunion. A relationship with the EU on this matter above all will be how we are judged, and I note the noble Lord, Lord Judd, noting that point. We will be judged on this, and we need to get this right. However, I stress that the EU also needs to get this right and, if I may be so bold and so frank, I do not believe that the EU has got this right either. It is seeking to find that solution and, for as long as we are a member, we will be part of that struggle. At the moment, there is no easy way forward, as the EU is finding and as I do not doubt we will find.

However, as long as we are guided by the noble intentions of individuals such as the noble Lord, Lord Dubs, I believe we will be moving in the right direction. On that basis, I ask him to withdraw the amendments.