European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I support Amendment 29 and the supporting amendments. My noble friend Lady Hamwee has put her name to them to express our strong support from these Benches.

The Foreign Secretary said in his one of his more perceptive interventions—delivered, appropriately, on Valentine’s Day—that if we get the right deal on aviation and visa-free travel, British citizens will continue to travel within the EU, meet interesting people and fall in love. It follows that they may also marry and have children with EU citizens.

There are approximately 16 million international families in the European Union and about 140,000 international divorces in the EU annually. While the statistics are not collected by individual countries, a great many of them involved British citizens married to citizens of other member states. Over many years, we have painstakingly constructed an effective, fair and widely admired set of arrangements for permitting very different family law systems to operate alongside each other within the EU, while enabling member states to respect the laws, orders and arrangements made elsewhere in the Union.

Importantly, as the noble Baroness, Lady Sherlock, explained, EU family law concerns procedural and not substantive law. All EU states have their own substantive family law; in the UK alone, we have three systems: one for England and Wales, one for Scotland and another for Northern Ireland. However, EU law has established a common set of rules for jurisdiction, recognition and enforcement of judgments and orders and cross-border co-operation. The Brussels IIa regulation, enforced since 2005, governs jurisdiction; that is, where proceedings ought to be brought and decided. It applies to divorce and cases concerning children; in private law disputes, such as those concerning residence or contact between parents and children; and to public law disputes where local authorities are concerned for child protection. The regulation also provides rules for child abduction cases, of which there are roughly 1,800 a year within the European Union, simplifying and expediting the enforcement within the EU of the protections accorded by the Hague convention.

The maintenance regulation which the noble Baroness, Lady Sherlock, also mentioned, enforced since 2011, enables parties to enforce maintenance obligations for adults and children across the Union. Further EU measures, directly applicable in all member states, reinforce protection for victims of domestic violence and assist in enforcing out-of-court settlements.

The effect of the Bill is that the UK would continue to be bound to apply EU family law in its entirety as it stood at exit day. However, there would be no reciprocity. We would be bound to recognise and enforce the decisions of EU member states, but the 27 remaining member states would be under no such obligation to recognise or enforce decisions of UK courts. So British citizens would be at a significant and lasting disadvantage. There would be the risk of proceedings in the UK being pursued in parallel with proceedings in EU member states and so the risk of conflicting judgments, with EU judgments enforceable in the UK and UK judgements unenforceable in the EU. This would be,

“the worst of all outcomes”,

as the Family Law Bar Association, Resolution and the International Academy of Family Lawyers pointed out in their excellent joint paper published in October. It would, as the paper asserted, leave our citizens in a position of significant vulnerability and confusion, and lead to unfair outcomes.

A further issue is that Brussels IIa is currently being revised. British family lawyers have been playing their important part in shaping the new arrangements. However, the new regulation will not apply to the UK unless we legislate for it to do so. Even legislating for it to do so will not bring about reciprocity unless we agree in negotiations to that reciprocity, and there’s the rub, because EU law is subject to interpretation and ultimate determination by the Court of Justice of the European Union, yet the Government insist on rejecting the direct application of CJEU decisions. Decisions of the CJEU in this field concern the rights of individual citizens. Cases are referred to the court because national courts seek the determination of individual cases before them by the European court. Members of this House have asked over and over again: why should the 27 give that up?

Amendment 53 is designed to explore a continuing role for the CJEU. The court has provided a successful system for the determination of disputes and for the supervision, monitoring and development of EU law. In our debate on the European arrest warrant on 8 February, I suggested that if we went ahead with this project to leave the EU, we could seek some adjustment of the constitution of the court, so that in areas of cross-border co-operation involving the United Kingdom the court might include a UK judge and a UK Advocate-General, which it otherwise would not, after we left, whether by the creation of a separate division of the court or by some other means.

The noble and learned Lord, Lord Mackay of Clashfern, whom I see in his place, raised the constitution of the court in Committee with my noble friend Lady Ludford, last Monday. However, I cannot see any basis on which we can preserve the benefit of EU family law, just as in many other areas where we seek continued co-operation with the EU, without agreeing to its fundamental underpinning by the guarantee of recourse to the CJEU. There has been no answer from our Government on these issues.

European family law brings this country an unqualified benefit. There is no down side. The Government, in answers from the Dispatch Box, have recognised this. They say they want to continue to benefit from the rules for cross-border co-operation in family law. However, we can no longer be asked to listen to pious protestations from the Dispatch Box in this House to that effect when, almost in the next breath, they contradict themselves by rejecting the decisive role of the Court of Justice in determining the application of the rules. Amendment 29 would insist on some frankness on the part of the Government about the consequences of Brexit for family law—frankness with the British public, who have a right to be informed of the threat to international co-operation in this area, and frankness with this Parliament, which will in due course be asked to enact a statute approving any withdrawal terms.

This Bill and the Government’s obsessive stubbornness on the question of the CJEU threaten to make international co-operation in family law a needless casualty of Brexit, with absolutely no countervailing benefit, either for British citizens or for citizens of the rest of the European Union.

[Baroness Butler-Sloss (CB)]

As a family judge, I regularly tried international family cases, so I entirely agree with the noble Baroness, Lady Sherlock, and the noble Lord, Lord Marks, and very much support Amendment 29. I am dismayed, I have to say, by the inadequacy of the current wording of the Bill, which does not refer specifically to family law and does not deal with the main issue of reciprocity and the importance of the European court in Luxembourg. I will reiterate two figures because they are important for noble Lords to know. One is that there are 140,000 EU divorces between the UK and other member states. That is not a small number. There are 1,800 EU child abduction cases—an area of the law that I spent a disproportionate amount of my time trying under the Hague convention before the EU law came in and enormously improved the Hague convention.

European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

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

[Lord Deben]

It seems to me that almost any circumstance does not fit this part of the Bill; indeed, I find it difficult to find a single circumstance that does. I hesitate to put this to my noble friend because on the last occasion when I tried to be helpful he found me more unhelpful than usual, so I shall be very careful, but I ask him to imagine that this particular clause was being proposed by a monarch who simply said, “I want to have the powers to decide what kind of word I am going to use for taking money out of your pocket without proper parliamentary control”. I think I know what our forefathers would have said to that monarch. He might indeed have been in fear of his life, for this is precisely what Parliament is about.

We ought not to deal with this merely in the reasonably light-hearted way in which we have pointed out that this is an ill-conceived, utterly ill-thought-through and entirely indefensible bit of the Bill. We should take it one stage further and say that it is fundamentally unacceptable in a democracy that any mechanism can give Ministers the power to decide on taxation without representation. This is what we are here for. This is what Parliament is here for.

It is no good my noble friend reading out, as he will, the carefully phrased answers, because the people who have written the answers have caused the problem in the first place. They are the ones who have not understood that taking back control does not mean giving it to my noble friend. It means, if it is necessary—I do not think it is, but if it is—giving it to Parliament. This is part of the Bill which does not so do. The amendments attempt to put right what is, in the immortal words of some Members of the House, a dog’s breakfast, which is rude to dogs.

This is entirely unacceptable, but there is one bit that I find more unacceptable than any other. If this is necessary in order to carry through our international obligations, which is an argument that has been used, it is a peculiar addition to a Bill which is removing us from international obligations. The one place where this should not be is in the withdrawal Bill. We are withdrawing from international obligations on the basis that we do not want to have them, but writing in an ability to assert international obligations by secondary legislation.

My noble friend Lord Forsyth, who has followed me so far, did not like my little comment about the EU, but I am sure he agrees that we should not be using secondary legislation to impose taxation as a result of international obligations. That is not what it is about.

My last point is very simple. I have always found the word “expediency”, when used by Ministers, a red flag. Ministers always say that something is necessary because it is expedient. Expediency is always the excuse for doing something which you cannot do properly but which you get through on the basis that this is an emergency, it is urgent, or it has something to do with terrorism—we can find some reason or other that means we cannot wait for the proper process.

I was a Minister for 16 years. We are three former Ministers. None of us thinks that this power should have been given to us, so just think how little we believe it should be given to people with a different political view. I say to the Minister, who is well to a different part of the Conservative Party from me, that he should be the last person to give these powers to Ministers.

[Baroness Butler-Sloss (CB)]

My Lords, I make two short suggestions. One is that all the words that we have heard today should be treated exactly the same. The second is that Parliament should deal with all of them.

[Lord Cormack (Con)]

My Lords, my noble friend Lord Deben, in his scintillating speech, referred to the power of arbitrary monarchs. I do not need to remind him—or anyone else in your Lordships’ House—that 369 years ago something happened to a monarch who had sought to exert those powers absolutely. The ultimate end of ship money was outside Banqueting House in Whitehall on 30 January 1649. I do not want to make too many historical diversions, but I was grateful to the noble Lord, Lord Tyler, whom we missed last week when we really began these debates on Wednesday, for referring to what I had sought to say then. This is the specific consequence of the generality that we abhorred last week—giving to Ministers, effectively, arbitrary power.

European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

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

[Lord Beith (LD)]

My Lords, I am sorry I missed the beginning of the speech of my noble friend Lord Sharkey as a result of unaccustomed speed breaking out on the Bill’s proceedings while I was having a cup of tea. Whether this will be repeated, I do not know.

I had discussions before with my noble friend to properly understand his amendment and its main aim, which is to embrace, within scrutiny procedures used for withdrawal Bill statutory instruments, all those statutory instruments for the same purpose that derive from other previous statutes. That is an interesting idea. When it comes to referring back to the Statutory Instruments Act 1946, it is worth recalling that the Act was surrounded by generous commitments, promises that prayers against negative instruments would always have time for debate on the Floor of the House and all sorts of undertakings that were completely unfulfilled in practice.

Whether the amendment can be made to work in precisely this form I am not quite sure, but I think that the purpose of ensuring that nothing is slipped through by anything less than at least the procedure of triage and scrutiny that we seek for statutory instruments under this Bill—if it becomes an Act—is extended to anything that does the same thing. We certainly would not want to create a perverse incentive for a Government to use the wrong legislation, or a different piece of legislation, for the statutory instrument simply because they could evade a form of scrutiny by doing so.

[Baroness Butler-Sloss (CB)]

My Lords, for the reasons that have already been given, I also support this amendment.

[Lord Tunnicliffe]

My Lords, that was even shorter than my speech. The Government have to accept that they have to come to some sort of accommodation on statutory instruments. We all know that a lot of them will be required, and we have got to have a good system that satisfies everybody, both in this and the other House. The amendment of the noble Lord, Lord Sharkey, sensibly makes that task simpler by making it uniform across the Bill. I am very persuaded by his argument and that of the noble and learned Lord, Lord Hope, and I hope that the Government are as well.

--- Later in debate ---

[Lord Judd (Lab)]

My Lords, I warmly endorse this amendment to which I have put my name. The feeling of dismay and disappointment among young people is hard to overestimate and has been put to me very forcefully. The Government keep saying that we are going to be an international nation whatever happens on Brexit, and that they put our international participation at the forefront of their considerations. It seems to me a very strange way to start if we in any way foreshorten the much appreciated opportunity to enjoy travel, study and the rest abroad, and to bring that experience back to Britain.

[Baroness Butler-Sloss]

My Lords, I support this amendment. My eldest grandson is about to leave university. He is incandescent with anger that he is about to be deprived of the right to look for a job anywhere across Europe when he leaves university. He is typical of a large number of young people coming out of university, colleges of further education and school who want the opportunity to travel, and, as my noble friend Lord Clancarty has suggested, the opportunity to do something outside their own country, to move away. However, that is something they are in real danger of losing with this change that we are about to have. The Government must really listen to these young people.

[Lord Robathan (Con)]

My Lords, I regret to say that I shall introduce a bit of controversy into the proceedings at 22.38 in the evening. It is insulting to suggest that those of us who believe that our future will be better outside the European Union—at 66, I’m all right, Jack; I think about the young, not myself—wish to curtail the rights of young people. I say to the noble Earl that I am European and I feel European; I just do not wish to be part of the European Union.

Let us look at this issue in detail rather than at what the noble Earl has said. We all agree that everybody should have opportunities to go to Europe and elsewhere. I have a niece studying in Canada, which is not, as far as I am aware, a part of the European Union. I have another niece studying in Australia, which is not, as far as I am aware, a part of the European Union. I understand that the Erasmus programme covers a great many countries that are not in the European Union, so it has absolutely nothing to do with the European Union (Withdrawal) Bill. The noble Earl is only a year younger than me; I have just looked that up. Surely he remembers that people were able to study in Europe before we were in the European Union. They did, and people from Europe came and studied with me at university. There was no bar. The only bar that the noble Earl talks about is the situation he mentioned of somebody in Paris stopping somebody else from going to work in Paris. It is not up to us; it is up to them.

--- Later in debate ---

[Lord Callanan]

My Lords, in addressing Amendment 204 moved by the noble Earl, Lord Clancarty, at the risk of repeating myself I remind the Committee yet again that the purpose of the European Union (Withdrawal) Bill is to provide a functioning statute book on the day we leave the EU, whatever the outcome of the negotiations. It is our intention that the planned withdrawal agreement and implementation Bill will implement the major elements of the withdrawal agreement, including giving effect to the agreement on citizens’ rights.

The amendment appears to seek to make it an objective of the Government to achieve a particular outcome in the negotiations on our future relationship with the EU and so to tie the Government’s hands on these issues. The amendment is focused on the withdrawal agreement, but these matters are for the future relationship with the EU, which this Bill does not seek to address.

After we leave the European Union, there will continue to be migration and mobility between the EU and the UK. We have proposed a time-limited implementation period based on the current structure of rules and regulations. This means that UK nationals may continue to have the same rights as EU nationals, such as the right to move and reside freely.

Looking to the future, UK citizens will still want to work and study in EU countries, just as EU citizens will want to do here, helping to shape and drive growth, innovation and enterprise. Indeed, businesses across the EU and the UK must be able to attract and employ the people they need. That is why, in our science and innovation policy paper published in September, we said that we will discuss with the EU future arrangements to facilitate the mobility of researchers, academics and students engaged in cross-border collaboration. We are open to discussing how to facilitate these valuable links.

Of course, we recognise the value of international exchange and collaboration, through both study and work placements abroad, in increasing people’s language skills and cultural awareness as part of our vision for the UK as a global nation. We will continue to take part in those specific policies and programmes which are greatly to the joint advantage of the UK and the EU, such as those that promote science, education and culture.

I repeat for the benefit of the noble Earl, Lord Clancarty, and the noble Lord, Lord Hunt, what I said in the debate on Erasmus, although I forget exactly when it was—sometime in the past. No decisions on UK participation in the successor Erasmus+ programme after 2020 have yet been taken for the simple reason that the scope of the future programme has not yet been agreed. The noble Lord is asking me to give him an assurance that we will take part in a programme about whose composition we have no idea. No Government could agree to do that. We will take a decision when we see what the successor programme is. UK participation will form part of the negotiations about our future relationship with the EU. There may be some specific European programmes that we want to continue to participate in as we leave the EU, and that will be considered as part of the negotiations.

Whatever the outcome of those negotiations, including the increasingly unlikely scenario in which we leave the EU without a deal—

[Baroness Butler-Sloss]

If the noble Lord will forgive me, will the Government continue to take into account the importance of young people’s desire to be able to work freely and move freely through Europe?

[Lord Callanan]

Of course we will take into account the wishes of young people to move freely, just as we will take into account the wishes of older people to move freely.

We will underwrite successful bids for Erasmus+ submitted while the UK is still a member state, even if payments continue beyond the point of exit. Therefore, applications for funding from UK institutions should continue, and are continuing, as normal.

The noble Baroness, Lady Humphreys, asked me again, as the noble Baroness, Lady Ludford, has done in the past, about the issue of associate EU citizenships. Let me make the point to the Liberal Democrats once again—it seems to have difficulty permeating through to them—that the EU treaty provisions state that only citizens of EU member states are able to hold EU citizenship. Therefore, when the UK ceases to be a member of the European Union, British nationals will no longer hold EU citizenship unless they hold dual nationality with another EU member state.

For those reasons, I hope the noble Earl will withdraw his amendment.

--- Later in debate ---

[Baroness Butler-Sloss]

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

[Baroness Whitaker (Lab)]

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

European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

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

Moved by

[Baroness Butler-Sloss]

315: After Clause 11, insert the following new Clause—
“Saving of acquired rights: Gibraltar
(1) Nothing in this Act is to be construed as removing, replacing, altering or prejudicing the exercise of an acquired right.(2) Any power, howsoever expressed, contained in this Act may not be exercised if the exercise of that power is likely to or will remove, replace or alter or prejudice the exercise of an acquired right.(3) In subsection (2) a reference to a power includes a power to make regulations.(4) In this section an acquired right means a right that existed immediately before exit day whereby—(a) a person from or established in Gibraltar could exercise that right (either absolutely or subject to any qualification) in the United Kingdom; and(b) the right arose in the context of the United Kingdom’s membership of the EU and Gibraltar’s status as a European territory for whose external relations the United Kingdom is responsible within the meaning of Article 355(3) TFEU and to which the provisions of the EU Treaties apply, subject to the exceptions specified in the 1972 Act of Accession.(5) Nothing in this section prevents the use of the powers conferred by this Act to the extent that acquired rights are not altered or otherwise affected to the detriment of persons enjoying such rights.(6) In this section, reference to the “1972 Act of Accession” is reference to the treaty concerning the accession of the Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland to the European Economic Community and to the European Atomic Energy Community.”

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest as a vice-chairperson of the All-Party Group on Gibraltar. I add that the noble Baroness, Lady Hooper, who has attached her name to the amendment, is very sad not to be here but she is currently on business in Geneva.

I tabled this amendment just after Second Reading, at a time when I was particularly concerned about the potential threat of Spain’s veto over Gibraltar—Spain was discussing exercising its veto over the transition period. Some weeks before I tabled the amendment I asked a supplementary question at Oral Questions about Gibraltar and the threat from Spain and received a rather surprising reply from the Minister that it was most unlikely that Spain would exercise its veto because Spain and the United Kingdom were on good terms. That answer caused astonishment both in the House and particularly, as one can imagine, in Gibraltar. So although I was aware of the helpful discussions continuing at that time between the United Kingdom Government, the Gibraltar Government and, in particular, the Department for Exiting the EU, I tabled this amendment as a precaution. Now I am glad to inform the House that there have been fruitful discussions between the UK Government and the Gibraltar Government and the situation has changed significantly.

The Gibraltar Government are now entirely happy with the reassurances they have received and believe that the progress made is substantial, that the United Kingdom Government are engaged in good faith, that the transition period is now protected, and that it is the unshakeable objective of the United Kingdom Government to ensure the seamless continuation of the existing market access into the UK and to enhance it where possible.

[Lord Foulkes of Cumnock (Lab)]

I received a copy of a letter from the representative of the Gibraltar Government which indicated that they wanted the noble and learned Baroness to withdraw her amendment. I was surprised at the nature of the comments in that letter. All they seemed to be concerned about was internet gambling and maintaining their rights to provide it to the United Kingdom. If there is one thing many of us would not want them to maintain, it is the right to internet gambling. They did not seem to be concerned about the rights of workers in Gibraltar going over to Spain or workers in Spain coming into Gibraltar, of people travelling, tourists or anything else. I wonder whether the agreement the noble and learned Baroness is lauding is of benefit to ordinary people in Gibraltar or of benefit only to the internet gambling syndicates.

[Baroness Butler-Sloss]

I have a feeling that the noble Lord, Lord Wigley, has not seen as many of the documents as I have.

[Lord Foulkes of Cumnock]

The noble Lord, Lord Wigley, is many things, but he is not a ventriloquist.

[Baroness Butler-Sloss]

I apologise. I was looking one seat further to the right. However, I feel that the noble Lord has not seen as much of the documentation as I have. I have the strong impression that the Gibraltar Government are extremely concerned about the movement of people, particularly between La Linea and Gibraltar. The agreements between the United Kingdom and Gibraltar Governments on the transition period go far beyond gambling—I am not the least bit interested in gambling—and include all the other areas of interest to the ordinary people of Gibraltar, including education. One of the agreements between the United Kingdom Government and the Gibraltar Government enables Gibraltarians who want education in this country to have it on the same terms as they have always had it and to be treated as if they were UK citizens. That is the kind of thing which is going on.

[Lord Wigley]

It really is me now. The noble and learned Baroness mentioned market access, which links in to the point the noble Lord, Lord Foulkes, made a moment ago. Can the assurances she has got be projected as single market access/participation? If so, does that not necessarily run way beyond the links between Gibraltar and Spain and into the generality of our relationship with the European Union?

[Baroness Butler-Sloss]

I do not know the answer to that because what I have been told by Gibraltar House, in particular by Fabian Picardo, the Chief Minister, is that there have been careful discussions with various Ministers, particularly the Minister for Exiting the EU, and that there will be protection during the transition period. There are also careful negotiations between Gibraltar and the UK on what happens after Brexit takes place. Those are not finalised, but the Gibraltarians are confident that they will get what they want because the Government have said that they wish to ensure the seamless continuation of the existing market access into the UK and to enhance it where possible.

Perhaps I may move on. The UK Government have been clear and insistent in stating that they are negotiating for the whole of the UK, including Gibraltar, and are standing shoulder to shoulder with the Gibraltarians in their unswerving commitment to the UK/Gibraltar relationship. However, I would add that the threat from Spain is real and continuing. Only in the past week or 10 days, another threat has come from Madrid about the exercise of the veto. However, the Gibraltar Government have accepted the assurances of the United Kingdom Government that the existing market access arrangements between the UK and Gibraltar will not be affected by the exclusion of Gibraltar in any sort of veto exercise by Spain during the transition period. Moreover, as I have said, there are continuing discussions about the position post Brexit and there remains, I have to say, a continuing threat from Spain. Perhaps unlike the noble Lords across from me in the Chamber, I would like to congratulate the Government on their approach to Gibraltar and how they are working with the Gibraltarians.

Gibraltar is a strong and faithful friend of the United Kingdom—it is important to remember that—and it deserves to be looked after properly. I can assure the Committee, however, that everything I have seen leads me to believe that the United Kingdom is acting entirely fairly and correctly. It is doing its best, and it is a good best, to make sure that the arrangements for Gibraltar during the transition period—

[Lord Hannay of Chiswick (CB)]

I am most grateful to the noble and learned Baroness for giving way. I shall speak in support of the amendment before it is withdrawn, but if I have understood the noble and learned Baroness rightly—I have also received a letter from the representative of Gibraltar in London—everything she has said relates solely to the relationship between Gibraltar and the United Kingdom. I have to say that that is not the heart of the matter. The relationship between Gibraltar and the United Kingdom has existed for 350 years and is not affected one way or the other by our membership of the European Union, so the Government are generously giving the Gibraltarians back what they already have.

What I should like to know is whether the noble and learned Baroness, because she is much better informed than I am on this matter, is aware of what has been agreed for the transitional period and the period beyond on the relationship between Gibraltar and the rest of the European Union.

[Baroness Butler-Sloss]

I can be corrected on this, but I think I am right in saying that much of what was arranged between Gibraltar and the United Kingdom on the business between the two countries was directed by the EU, and consequently it is important that the arrangements between the United Kingdom and Gibraltar make it absolutely clear that all trade between the two countries would continue unimpeded. I know no more about what is being said about Gibraltar and the EU than, I suspect, anyone else in the Chamber other than the Minister, because I assume that all of this is subject to the negotiations. But the United Kingdom Government have promised that they will stand by Gibraltar and that they will make sure that they are negotiating for Gibraltar as well as the whole of the rest of the United Kingdom.

I am not in a position to say any more than that, but the amendment was necessary when I tabled it. It is clear that it is not necessary now, but I was not asked to withdraw it. I would not have dreamed of accepting such a request. I was told that it was not necessary for it to go to a vote and that the Gibraltar Government would prefer us not to vote on it, for perfectly obvious reasons. If relations between Gibraltar and the United Kingdom Government are as good as I am told they are, I do not have the slightest desire to rock the boat. I do not propose to take this amendment any further beyond Committee. I beg to move.

[Lord Chidgey (LD)]

My Lords, I added my name to the amendment after Second Reading, as Members will realise. It has been fascinating listening to some of the debate so far, but I go back to what Amendment 315 would do. It would make it clear that the EU (Withdrawal) Bill does not permit the,

“removing, replacing, altering or prejudicing the exercise”,

of Gibraltar’s acquired rights with reference to the 1972 Act of accession. That is what the amendment says. Some of the comments made so far have been very interesting, but they are not soluble.

The amendment has been tabled because, sadly, it became necessary following Spain’s repeated verbal aggressive claims, and not just those relating to the EU (Withdrawal) Bill. Those of us who have studied Gibraltar’s interests over the years will know that it is a repeated problem in our dealings with Spain over Gibraltar’s rights. It has become necessary because of that behaviour from Spain, particularly the claims to which the European Council and Commission have given unwarranted credence and encouragement. There is no legal validity to paragraph 24 in the European Commission’s Brexit guidelines, proposing a right of veto for all 24 EU members on negotiations over Gibraltar. The inclusion of paragraph 24 in the guidelines detracts from driving a good result for all of the EU and for the UK with Gibraltar. This is why we have tabled the amendment.

In the meantime, I agree with the noble and learned Baroness, Lady Butler-Sloss, that it is quite right that a wide package of measures has been agreed by the joint ministerial council of the UK and Gibraltar that covers university fees, health, transport, the environment and fishing—much the same as exists already. The noble Lord, Lord Hannay, made that point very well. The agreement also includes guarantees on continued reciprocal rights for Gibraltar’s citizens on accessing key services.

As a member of the All-Party Group for Gibraltar for more than a decade and a previous vice-chair, I share the view that Gibraltar must be included in the implementation and future agreements, not just in the negotiations. Over the years, the people of Gibraltar have demonstrated how much they cherish their British sovereignty, which has been well deserved for more than 350 years, as the noble Lord, Lord Hannay, mentioned. In response to correspondence from the chair of the All-Party Group for Gibraltar, the Prime Minister has given her assurance in writing that the Government are forthright and resolute in their support for Gibraltar. They are determined to defend the interests of the people of Gibraltar in their negotiations with the EU. But it is early days. As many people keep saying about the EU (Withdrawal) Bill, nothing is agreed until everything is agreed. Amendment 315 seeks to reinforce in every way the resolve of our Governments and our Parliaments.

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[Lord Callanan]

I am not an expert on the legal ramifications of dominion status, so if the noble Lord will forgive me, perhaps I may write to him on that.

[Baroness Butler-Sloss]

My Lords, I thank all those who have taken part in this debate and the Minister for his partial reply. I recognise that nothing is decided until everything is decided. I concentrated on the business arrangements between the UK and Gibraltar because they are one of the major concerns. Of course, there are many other major concerns for Gibraltar, which is stuck in a very difficult position, but the one thing it has is good trade relations with the United Kingdom and a lot of business. That needed to be in at least the first stage of what would be done. It is not just gambling; it is also education, tourism and the other things that the noble Lord, Lord Luce, set out in his speech today.

It is good that, at least as between the United Kingdom and Gibraltar, there are clear guidelines and Gibraltar has protection. We know—I am very grateful to other speakers for having raised these issues—that the position of Gibraltar is extremely precarious vis-à-vis the EU. In relation to migrants, I understand that Gibraltar wants as many as come across the border daily, mainly from La Línea, to work. It is up to Spain whether it lets them come through. It is not up to the Gibraltar Government, who welcome them. As has been said, I think by the noble Lord, Lord Luce, 13,000 people a day go through, 10,000 of whom are from Andalusia and are Spanish workers. It is very much to the detriment of Spain if it does not allow them through. It was, of course, La Línea and the southern part of Andalusia that really suffered when Spain closed the border for some 15 years.

So, there are reasons why Spain might be sensible. One hopes that the positive discussions that go on may have a good effect. However, as the noble Lord, Lord Luce, and I have said, there are dangers of the threat to Spain. All of us enjoy Spanish holidays and many of us have Spanish relationships, as the noble Lord, Lord Collins, has, so we want to be fair to Gibraltar. Gibraltar is part of us but we want to continue to have good relations with Spain. I very much hope that, having got to the first stage—business relations, education and other relationships between Gibraltar and the United Kingdom—we will continue to battle on behalf of the whole of the United Kingdom, including Gibraltar, in whatever arrangements happen during Brexit. Having said that, I beg leave to withdraw the amendment.

Amendment 315 withdrawn.

European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

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

[Baroness Butler-Sloss (CB)]

I was President of the Family Division. It is interesting that, as far as I know, in domestic family law, nothing whatever is said about rights for children up to the age of 16. There are some medical rights for children aged over 16. In the human rights convention, nothing is said about the rights of children, which makes the United Nations convention absolutely crucial.

I add just one further point. In 1988, I was the author of a report on the Cleveland child abuse inquiry. My second recommendation was that children ought to be viewed as people and not objects of concern, which is how our domestic law looks at children. It is a very serious matter. If we do not have the protection of the UN Convention on the Rights of the Child in its various articles, we will fall very seriously behind—and that is why I support the amendment.

--- Later in debate ---

[Baroness Goldie]

My Lords, I am grateful to the noble Baroness, Lady Massey, for raising the important issue of children’s rights through this amendment. I know that both the noble Baronesses, Lady Massey and Lady Meacher, met the Children’s Minister recently to discuss these matters. I fully accept that the intention behind this amendment is clearly an honourable one. However, it would in effect add no further value to preserving current safeguards on children’s rights within the Bill. This is because the amendment implies that the EU offers additional duties or functions to safeguard children’s rights above or beyond those that exist in the UK. That concern may stem from the Government’s proposal to not retain the Charter of Fundamental Rights, subject now to further consideration when this Bill returns to the other place. However, if the charter no longer applies once we exit the EU, this would not impact on the UK’s ability to protect and safeguard children’s rights, as I shall endeavour to explain.

The amendment also states that there are some children’s rights which are not currently protected under domestic law but are under EU law. Again, however, we do not accept their construction. The noble Baroness, Lady Sherlock, raised the important point about what these rights are and what will happen to them on exit. Children’s rights are, and will remain, protected in England primarily through the Children Act 1989, the Adoption and Children Act 2002, and the Children Act 2004.

[Baroness Butler-Sloss]

As one of those who was involved in the drafting of the Children Act, my recollection is that it is entirely devoted to the welfare of children and their best interests. I cannot remember a single word about rights. Parents have rights and responsibilities, but not children.

[Baroness Goldie]

I defer to the noble and learned Baroness’s prowess in this area—I would not seek to usurp it for one moment. I am merely giving that Act as an example of part of the framework that currently exists in statute to protect children. If parents indeed have responsibilities under that Act, presumably that confers benefit on the children. Additionally—and I was interested that noble Lords did not refer to this—the European Convention on Human Rights as a whole offers protection of children’s rights, and this is implemented by the Human Rights Act 1998. Children are not excluded from these provisions.

I also want to make clear to the House that the overall package of children’s rights protections set out in domestic legislation can be challenged in the usual ways in the event of a breach of a specific provision of domestic legislation. This will continue to be the case following our withdrawal from the EU.

A number of contributors raised the interesting question of sanctions against breaches. I have no specific information on that but I will undertake to investigate and, if I can procure any information, I will certainly write to those who raised that specific aspect.

As has been stated during previous debate on this—and I thank those who have provided helpful contributions—the Government take very seriously the need to ensure that proper checks and balances are in place so that we continue to safeguard and promote children’s rights. The intention behind this amendment is clearly to create additional safeguards. However, I suggest that sufficient measures already exist which will not be affected by our withdrawal from the EU.

It is important to recognise that all state parties undergo rigorous periodic reporting rounds on the UNCRC, to which a number of contributors referred, consisting of intense scrutiny and challenge. The last reporting round concluded in 2016, with the United Nation’s concluding observations published in July of that year. In response, the Government reiterated their commitment through a Written Ministerial Statement in October 2016. In January 2022, the Government will submit their next UK periodic report for the United Nations Convention on the Rights of the Child to the UN. This report will primarily address the UN recommendations that came from the last reporting round, which, as I say, concluded in 2016. In addition, next year the Government will be submitting a mid-term report to the UN Human Rights Council on the 227 United Nations recommendations, many of which relate to children’s rights. This report is a voluntary commitment of the UK, aimed at keeping all UN recommendations under review in advance of the next universal periodic review’s dialogue, expected in 2021.

--- Later in debate ---

[Lord Bassam of Brighton (Lab)]

My Lords, my name is joined with that of the noble Lord, Lord Dubs, on this amendment. I think that if I was to make a lengthy speech in support of the amendment the House would not thank me. It is much better that we try to resolve the matter.

I want to thank the Minister for our meeting earlier today with the noble Lord, Lord Dubs. It was very useful but also quite instructive. I think that we were agreed that we were not far apart in what we were both seeking to achieve. Where we differ fundamentally is that the noble Lord and I share the view that we should put such a provision in the Bill.

There was a lot of resistance when the noble Lord tried to do this with his original Dubs amendment. Some of the arguments then were exactly the same. They were: “This isn’t something you should try and commit to legislation”. Well, I think it is, because it sets a benchmark and a threshold, and it gives an instruction. The Government are often keen to tell us that they have been instructed on things, and we need from time to time to be clear about what we are trying to achieve in negotiations. This is one of those occasions.

We should not resile from our humanitarian commitment. This evening, by supporting the amendment in the name of the noble Lord, Lord Dubs, we will be fulfilling that commitment. I therefore hope that the House comes speedily to a conclusion in this debate, so that, if we have to, we can divide on it and give support to the noble Lord on a very important matter to which I think we all wish for a happy outcome.

[Baroness Butler-Sloss]

My Lords, I, too, have put my name to the amendment. As the noble Lord, Lord Dubs, has pointed out, we are talking about the rights of children. This is not just a humanitarian question; it is about a number of children across Europe who have a right to come to this country at the moment because their family is here.

Having gone to Calais last summer and having with Fiona Mactaggart, the former MP, written a report on what was going on in Calais and Dunkirk, I know that the plight of children there who have not yet been processed is dire. The plight of children in the Greek and Italian camps is very poor. Therefore, the way in which Dublin III works is patchy, but, as the noble Lord, Lord Dubs, has said, it works to some extent. Please let me repeat: we are talking about children with rights and not advancing arguments based exclusively on humanitarian grounds.

I was lucky, with the noble Lord, Lord Dubs, to be at a different meeting from that referred to by the noble Lord, Lord Bassam, in which we met two Ministers, the noble Baroness, Lady Williams, and the noble Lord, Lord Duncan. We had useful discussions. I entirely accept the genuineness of their offers to the noble Lord and me. They are trying hard to placate us. They have expressed good intentions which are, as far as they go, valuable, but they are aspirations as to what might happen at a later date. They are talking about the possibility of an immigration Bill and of another Bill later this year, or what they call in lovely general terms a vehicle into which this sort of thing can be placed. As far as it goes, that is good, but it does not go far enough.

I would like the House of Commons to have time to discuss this amendment if this House passes it, as I hope it will, so that, by that time, Ministers will perhaps have got their act together to be able to make much more concrete offers to the House of Commons. Therefore, it is important that we support this amendment at this stage so that at least the other House has the chance to consider it. I will therefore vote for the amendment if the House divides.

[Baroness Sheehan (LD)]

My Lords, I shall say just a few quick words as my name is also attached to this amendment. In essence, what the amendment boils down to is that without the UK’s continued participation in Dublin III, which would be the case if Brexit were to happen, an unaccompanied orphan in Europe, among others, could no longer apply to be reunited with close family members while an asylum claim is being processed. Brexit is about many things but it is not about doing away with one of the very few safe and legal routes that exists to bring some of the most vulnerable children to the UK.

Since this amendment was debated in Committee we have witnessed the maelstrom that has raged over the inhumane treatment of the Windrush generation. Across the Commonwealth, how the Windrush scandal plays out is being watched with concern and our reputation is on the line. I say to the Government that at a time when we are trying to redefine our place in the world and looking for good will and support from friends across the globe, to be seen as a nation that is trying to isolate itself from responsibilities to people seeking sanctuary, some of them very young, will not do us any favours.

The Britain that the world knows and that the British people, by and large, recognise is the Britain that has always spoken up for values and principles that enshrine in international law the rights of vulnerable people who, through no fault of their own, find themselves destitute and place themselves at our mercy. We have a proud history of welcoming them and I should like us to continue to do so. So should the noble Lord, Lord Dubs, decide that the Government’s moves are not enough to satisfy him and wish to seek the opinion of the House, we on this side of the House will wholeheartedly support him.

European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[The Earl of Clancarty (CB)]

Before the noble Lord sits down, this is being tested in the courts in Europe, so not everyone is of the opinion that you cannot have European citizenship. I believe that in June we will hear the result of the appeal by the Netherlands.

[Baroness Butler-Sloss (CB)]

My Lords, I am the only member of my family unfortunately unable to get an Irish passport, and I very much resent it. I admire the noble Lord, Lord Wigley, for raising this issue, but I fear that my noble friend Lord Kerr has got it absolutely right. I wonder whether, when we have left, there will be any possibility of negotiating any sort of individual relationship for UK citizens with the European Union. That is my hope, but perhaps it is a faint hope. Much though I admire what the noble Lord, Lord Wigley, said, my noble friend Lord Kerr is absolutely right and there is no point in supporting this amendment.

[Lord Green of Deddington (CB)]

My Lords, one aspect of this will be dealt with, or should have been dealt with, by looking at the immigration system we will have with Europe. We have made proposals for the free movement of young people, and we could have proposals for movement without visas and so on and so forth. Personally, I think the Government made a serious mistake in not setting this out and getting into a negotiation with the European Union that would tackle some of the aspects that have been raised.

European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

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

[Baroness Butler-Sloss (CB)]

I do not know which way to vote, so what the Minister is saying to the House is enormously important to me. Are we actually going to be able to have enforcement by the European Court of Justice until the moment of the completion of the implementation?

[Lord Callanan]

That is what has been agreed in the implementation period that we have agreed with the EU so far—but it will be the subject of legislation that we will be able to consider.