Brexit: UK-EU Movement of People (EUC Report)

Lord Eames Excerpts

Monday 17th July 2017 Lords Chamber

[Lord Eames (CB)]

My Lords, I join those who have paid tribute to the work of the noble Baroness, Lady Prashar, and her colleagues for an excellent report, which has dealt with some grey areas that troubled us all for a long time before its publication. While in my remarks I want to express a certain degree of disappointment, I congratulate the committee on the thoroughness of its efforts, and I believe that the report will withstand scrutiny in the days to come.

It is right when we discuss the movement of people that two words, immigration and emigration, dominate our thinking, and so it has turned out to be this afternoon. But there is another aspect to this problem, which we would be failing as a House if we did not take note of. Brexit will mean that the only land border between the United Kingdom and the European Union will be a line on the map of Ireland. As I have said in your Lordships’ House on frequent occasions, there is very much more involved in Brexit for the people of Northern Ireland than for any other part of the United Kingdom. That land border will assume immense significance, for economic, cultural and political reasons, for both the EU and the United Kingdom, but it will also become a significant issue in the movement of people.

I cannot overemphasise the importance of that land frontier for the citizens of the United Kingdom who live and work in Northern Ireland. I say again that it is they who will be on the front line when Brexit becomes reality. Nowhere else in the United Kingdom will the particular problems that we face and will face become as evident. Today, need I remind your Lordships, perception can become reality in an instant. There is a perception in Northern Ireland that, despite verbal reassurances, the particular needs of the border areas in Northern Ireland could take second place to the many international decisions to be reached in the current negotiations. Principal among those concerns is the movement of people, not only in terms of immigration or emigration but in terms of the lives that will be affected by the new significance of the land border between the United Kingdom and the EU. These are people who live in the border regions and whose families literally span the border—people whose work takes them across it every day of their lives, farmers whose work and land cross it, children whose journey to school makes the current border irrelevant.

In my conversations with the Irish Government on these issues, I have come across widespread sympathy for the concerns that I am expressing today. The understanding is that equal social and economic issues will arise on both sides of the land border. I know that that sympathy has been expressed to Her Majesty’s Government before the negotiations have begun. It remains to be seen how long that degree of co-operation and sympathy can be maintained, but it is vital because of the area that I am talking about.

In preparation for this debate, I went to the border town of Newry, which is the hub of activity for that region. In our own post-conflict society, it has become very significant because it has a higher proportion of immigrants living, working and bringing up their families than any other part of the border region. For them to be subjected to the sort of uncertainties that we are all conscious of—to be confronted by doubt and lack of clarity in their new home—is nothing short of a human tragedy.

On that visit to Newry, I met many people who, without exception, expressed concerns about freedom of movement. Of course, like all of us, they had worries about how trade will be with their EU neighbours in the Republic of Ireland. However, their principal worry by far centred on freedom of movement in everyday terms. That freedom is not being questioned by them on high-sounding, detailed constitutional grounds; they realise that those matters are beyond them. But they are asking about a way of life: ordinary people and their basic needs. If those needs and questions are ignored, Brexit becoming a reality might produce a host of problems that we have yet to prioritise.

I have studied this report very carefully, for obvious reasons. I appreciate the depths of its analysis, but I am disappointed to find that neither in the membership of the committee nor in its gathering of evidence is there recognition of the realities of the movement of people in the Irish border areas. Noble Lords may tell me that they are so unique they are not worth prioritising. Should they take that view, I would remind them that the problems that have arisen in my homeland over the years can very quickly become major issues for the United Kingdom as a whole.

Perhaps the Minister, in responding to the debate, will be able to reassure me and the people of the United Kingdom to whom I refer—the people who live in border areas. I ask her to recognise, and convey to Her Majesty’s Government, that these are not make-believe issues that I raise. They are urgent issues of a human nature which she and her colleagues will find are being looked at sympathetically by the Government of the Irish Republic. I hope she will also reassure the House that, having recognised the special nature of the problem I am raising, it will not be forgotten as the agreements and the negotiations continue.

Finally, more than emigration or immigration are involved in the movement of people and Brexit. There are other aspects to the freedom of movement after Brexit.

Asylum Support (Amendment No. 3) Regulations 2015

Lord Eames Excerpts

Tuesday 27th October 2015 Lords Chamber

At the Conservative Party conference, the Prime Minister promised an all-out assault on poverty, yet two days running we are debating statutory instruments which will increase and intensify poverty and which lack a credible evidence base. I cannot support these regulations and I hope that other noble Lords will not do so either.

[Lord Eames (CB)]

My Lords, I support the noble Baroness, Lady Hamwee. Listening to her speech a few minutes ago I was reminded of the first occasion on which I sat on a committee of this House with her. I was struck immediately not just by how she mastered facts and figures but by her compassionate heart, and tonight we have seen these two features in her presentation. For that, I thank her.

I come from a part of the United Kingdom which has reached out to asylum seekers to an extent out of all proportion to its size. Its record deserves scrutiny left, right and centre. Despite all our difficulties over the years—I need not reiterate them to this House—the compassion that our people have shown to asylum seekers is first class. Unfortunately, what we are debating tonight—particularly in relation to the Motion tabled by the noble Baroness, Lady Hamwee—is the adequacy or otherwise of what we are left with to put that compassion into reality.

One of the problems that we have seen locally in Northern Ireland is that what we are allowed to spend on support for families in this terrible condition is inadequate for children, particularly younger children. If noble Lords will forgive me for being specific, I will long remember a priest telling me that he was still haunted by the words of a mother of a disabled child who had become an asylum seeker, and was accepted into our local society. She looked at what she had to spend for the upkeep of the rudiments—not luxuries—for a week and asked: “Is this really the promised land?”. Where is our conscience? Where is our reality?

We have heard technical points in this debate and objections to the way in which Her Majesty’s Government have effected this current situation, and we could argue all night over the rights and wrongs. The noble Lord, Lord Rosser, has reminded us that there is a doubt in his mind about the legality, so to speak, of the words of the Motion tabled by the noble Baroness, Lady Hamwee. I am not concerned about that but about the common denominator of both these Motions which is that behind facts and figures are human beings: men, women and children, and the children are absolutely vulnerable. A recent medical report spoke of the value of providing reasonable nutrition for children, but what is offered to them by society and local authorities is totally inadequate to meet that basic level of nutrition.

I am also reminded—this is the point that I would urge the House to remember about both Motions—that one of the practical consequences of the inadequacy of what we are able to give to these families is that they will turn to other sources of support. They will turn to charities, charitable organisations and churches. I speak from more than 40 years of experience of that sector. The problem I foresee, while listening to the emotion of this debate, is that there will be a limit to how far charities can meet the demands that they are faced with. For local authorities, charities, churches and well-meaning individuals there is a limit. Society will then have to turn back and ask, “What has brought us to this point where the line has been drawn in the sand and these sources can no longer meet the demand?”. When that time comes, I respectfully suggest to your Lordships’ House that it will not be parliamentary niceties that will concern us as a nation: it will be the crying need of a generation of refugees and asylum seekers—knowing the distinction between the two, of course. That generation will judge us, and it will judge that we have failed it.

[Baroness Humphreys (LD)]

My Lords, I will make a very brief contribution to this debate and concentrate on aspects of the report of the Secondary Legislation Scrutiny Committee regarding these regulations. My noble friend Lady Hamwee and the noble Lords, Lord Rosser and Lord Alton, have already covered most of the points that I wanted to make, and I hope that the noble and right reverend Lord, Lord Eames, will forgive me for being slightly emotionless in what I am about to say and concentrating on what the committee thought.

The committee had concerns with the original set of regulations that came before us. When the Government introduced this new set of regulations in July, we were surprised that there was no reference to our original concerns. Even in the new Explanatory Memorandum, to which the noble Lord, Lord Rosser, has already referred, we were presented with no cost-benefit analysis. I would be grateful if the Minister could give us some information about whether a cost-benefit analysis has been made. There was no indication of the number of households affected by the changes and, again, I would be grateful for the Minister’s comments on those. There was no indication of the sum expected to be saved, and I would like the Minister’s comments on that. There was also no real definition of the term “essential living needs”, although we all know that the sum has been based on them.

I want to press the Minister on the term “essential living needs”. Reference was made to it in the original regulations, which were subject to judicial review in 2014, and the courts adversely commented on the items overlooked by the Government. Some noble Lords have already referred to theme, but I make no apology for repeating them. Our report stated:

“Among other things, the court identified particular categories of essential living costs that had been overlooked by the Government when setting the rates of support: for example, nappies, baby clothes and other baby products, non-prescription medication, washing powder and cleaning products”.

It was not until we received the letter that the Government had written to NASF members that we had some idea of the methodology that was to be used.

The one figure that stands out for me as a grandmother in the methodology that the Government are using is the expenditure budgeted for clothing and footwear, which is £2.51 per week. I would love to be able to tell my children that clothing and footwear for their children could cost just £2.51 per week. That is just one point that I wanted to make.

I would be grateful if the Minister could give the House a definitive definition of essential living needs, on which these regulations are based. How confident is he that this definition will not be subject to another judicial review?

Terrorism Prevention and Investigation Measures Bill

Lord Eames Excerpts

Wednesday 19th October 2011 Lords Chamber

[Lord Eames]

I rise to briefly support the amendment of the noble and learned Lord, Lord Lloyd, but do so from an angle that has yet to be mentioned in the debate this afternoon. I base it on my own experience over the years. Exercising the duties given to me in Northern Ireland, I saw at first hand the burden that successive Secretaries of State had to carry on behalf of the Executive in situations of dire necessity demanding often urgent and serious decisions in a matter of hours. The former Secretaries of State who grace this House—I see the noble Lord, Lord King, in his place—will recognise the roles of the judiciary and the Executive.

The Bill has been thoughtfully carried to this stage, and I am aware from my own contacts of the thought and preparation that have gone into the terms before us. The Minister will obviously want to argue that the right way to do this in the case of urgent and very sensitive issues is through the work of the Executive and their decisions. In his position, many noble Lords would argue the same. However, where in the sensitive and urgent situation of widespread terrorism a whole community is faced with what should be protection by the Executive, there is a tendency not to value the importance of the community’s confidence in how those decisions are made.

In those years to which I referred in my own lifetime of experience, in the discussions to which I was privy and decisions that were taken where my own opinion was sought, there was no doubt of the urgency and necessity of moving as quickly from the level of executive or political decisions to what could be transparently seen as the decisions of the judiciary. The important point I am simply trying to underline is that, in our discussions this afternoon, let us bear in mind the question of the confidence of the community in decisions that are made at this level. I beg to suggest that, where those decisions are made by the judiciary, there is much more acceptance by a hard-pressed community under a situation of terrorism than in the other case. This is not to downgrade the integrity of any executive decision, and I am not doing that; I am simply saying that we must take a broader view. For that reason, I support the noble and learned Lord, Lord Lloyd.

[Lord Faulks]

I agree with what my noble friend Lord Macdonald and many other noble Lords said, that we can trust the judges. As the Bill currently reads, they have the task of scrutinising the imposition of measures on judicial review principles. Experience and the dicta of judges suggest that they will be particularly rigorous in this. This area is not generally considered one where Ministers are permitted quite the same sense of discretion as, say, on an issue of economics, but it is one where judges really can get in among the detail and form a view of a matter. They are only too conscious of the potential limitations of closed hearings and special advocates, and the potential risk that these present to those who are potentially the target of these measures.

On the amendment proposed by the noble and learned Lord, Lord Lloyd, I acknowledge his distinguished pedigree and the pedigree of the amendment, which I think goes back some time to the original control orders, but I respectfully suggest that it is inappropriate. I suggest that the obligation rests on the Home Secretary to protect the security of citizens. It rests upon her shoulders and it is a heavy burden. If one needs to find any emphasis in this from the Human Rights Act, Article 2 provides an obligation on the part of the public authority, the Government, to take measures to protect the life of citizens. Those measures will include appropriate measures to prevent outrages of this sort—that is of course what this Bill is concerned with. In this Bill she has to reasonably believe that an individual is involved in terrorist activity and reasonably consider that a TPIM and its appropriate measures are necessary. That is an exercise that she, with that heavy burden placed upon her, should perform.

As I understand it, this amendment is born out of an outright opposition to TPIMs and their predecessors, control orders. The courts have minutely examined these control orders in a number of cases. They have had various degrees of enthusiasm about them and about the closed hearings and the special advocates, but they said that they could operate unlawfully or they could operate satisfactorily—it would depend on the individual cases. However, they have survived what was a wholesale attack on them as a measure. It was not decided by any court that they were by definition contrary to the rule of law. It was acknowledged by judges in a number of cases that the security of the nation was a potent argument in favour of such orders.

It was not suggested in any of those judgments that it was better for the courts to have the decision in the way that this amendment suggests. I doubt that the courts would really relish such a task. Their job, traditionally, is to scrutinise, to examine the legality of the decision, but not to take upon themselves an essentially executive decision. I suggest that the Secretary of State—knowing, as she will, that her reasonable belief will be subjected to close scrutiny by a process which, correctly, places a heavy emphasis on the freedom of the individual—will exercise that power extremely responsibly, and I suggest that the balance should remain as it is in the Bill.

Finally, I will say something about the question of the standard of proof. If there is a fundamental shift in the way that power is to be exercised, as is suggested by the amendment, and the matter comes to the courts to decide, then it may be that the standard of proof should be the balance of probabilities. That is the test that has evolved over the years to decide civil matters generally. There have been recent decisions that suggest there is no shifting standard, but it remains the standard. It has developed pragmatically because there have to be decisions in civil cases to be distinguished from the higher standard in criminal cases.

However, as I understand the amendment proposed by the noble Lord, Lord Pannick, should the power remain with the Home Secretary, she should not have the decision based on reasonable belief but on balance of probabilities. I respectfully say that that balance of probability test may be appropriate where there is a judicial process to be undergone, but where we are talking about an executive decision, reasonable belief is much more appropriate than the process of coming to a conclusion on a 51:49 basis, which is far more suitable for a judicial determination other than the decision which at the moment would—and should—rest with the Secretary of State.