European Union (Withdrawal Agreement) Bill

Baroness Hamwee Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, one often hears in this building, in answer to the question, “How’s it going?”, “Well, it has all been said but not everybody has yet said it.” In this case, it is appropriate that we demonstrate the strength of feeling and the depth of our concerns through quite a lot of repetition. “Get it done” suggests that Brexit is a single act or event; we know that it is not. The withdrawal agreement is almost too heavy to lift; the political declaration is a slip of a thing, with much-expressed and rather imprecise terms about considering, aiming to and exploring options.

We do have to explore the options. This is not about the House seeking to frustrate the Commons, or to deny the Government’s manifesto or to try to replay 2016. It is about moving from slogans to nuance, from headlines to detail, to make the Bill and the withdrawal workable and to prevent no deal either overall or in respect of a raft of issues. No deal will not mean nothing being in place; it will mean something but not something that would be to our advantage. The Minister said that we would have plenty of time for the scrutiny of secondary legislation. What he did not say, but what I heard, was “until the House realises that the Government have it right and noble Lords stop being over-fussy”.

I have put my name to amendments relating to the rights of both EU citizens in the UK and UK citizens in the EU where, in part, sensible dealings with other countries are needed. However, we can give protection unilaterally, and we will pursue that. The Government seek to reassure us about both the objectives and process of the settled status scheme. I am not normally a Cassandra, but I am not reassured about the rights that those with status will be able to exercise. To mention one, onward movement is important in the services sector, but services seem to have been a poor relation in our discussions.

I also put my name to the objection to losing the 2018 Act provisions for family unity—the so-called Dubs amendment. To say that this is because negotiations have started is unpersuasive. The 2018 Act does not require us to join in those negotiations; it requires us to negotiate. The Minister may tell us that the current clause has the same objectives. If so, why remove the modest obligation to seek to negotiate? We are sending a message that the Government’s heart is not in achieving this objective and that they have already given up on seeking to protect unaccompanied asylum-seeking children and the reunification of families. Is this really the global Britain that we want to be a part of? Noble Lords may be aware that a report by Amnesty, the Refugee Council and Save the Children was published at the weekend. It reported that the child refugees

“were asked what messages they would like the UK Government to hear about the impact of the Immigration Rules on their lives. Without exception, they all invited the Government to imagine themselves or their families in a similar situation to their own”.

I will also pursue this issue through my Private Member’s Bill.

The course that the Government are set on is beyond me. We have the dog whistle of legislation by a Government prohibiting themselves from extending the implementation period. I am puzzled by this. The decision on whether to extend is in their own hands. They could always amend the legislation come June. Are they so apprehensive about how little can be achieved by December that they want to assure everyone that they will be forced to resist that temptation? Does this not hand a huge negotiating advantage to the other side?

We may not be members of the EU after the end of this month, but we will still be Europeans with a past and a future interwoven with that of our European neighbours, who I hope will also be our partners.

European Union (Withdrawal Agreement) Bill

Baroness Hamwee Excerpts

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Viscount Waverley (CB)]

My Lords, I hope I may be permitted to elaborate on a point made by the noble Lord, Lord Hamilton. I do so as a long-term resident of Portugal, where there is a sense from officialdom on the continent that the rights of UK citizens in Portugal, and indeed elsewhere, are actually in a good place. The key word in all this is reciprocity. The Portuguese have made certain protections for UK citizens in their country, but there is this key word in Article 19 of the appropriate legislation that specifically— I will not translate it directly from the Portuguese—relates to reciprocity. The conditions are broadly the same; if you go and register, your rights are protected. In reality, that is what everyone should be doing anyway. If there is a single message that the Minister and others in this country might want to give, it is to encourage UK citizens to do the very easy and simple thing—go and register, and your rights are protected.

[Baroness Hamwee (LD)]

My Lords, important points have been made about UK citizens in other European countries, and my noble friend Lady Miller and I have an amendment on one aspect of that which I think will be taken on Thursday.

The noble Lord, Lord Warner, referred to permanent residence status. I understand that while the numbers of people applying for permanent residence have dropped a bit, as one would expect given the rollout of the settled status scheme, they are still significantly higher than they were before 2016. One can only speculate about the reasons for that—I do not think we can know what they are—but permanent residence provided documentary evidence, and the physical evidence available through that route may well have been a reason for the high number of applications.

Points have also been made this afternoon about immigration rules. I cannot let the occasion go by without saying how much I would welcome rules that are simpler and cannot be changed without going through full scrutiny and parliamentary process.

I will make a couple of points on these amendments, which I wholeheartedly support. One is the importance of ensuring that people who have some sort of status are not impeded in travelling. I have come across this in connection with independent leave to remain obtained by a refugee, only the latest of a number of examples I have heard of people who have had problems with travel documents. There is something about not fitting the boxes that officials are given and need to tick. We must make sure that those with settled status can properly exercise their rights and come in and out of this country freely.

My other point was mentioned by the noble and learned Lord, Lord Keen, last night in summing up the debate. He said that there will be an “automatic reminder” to those with pre-settled status to apply for settled status. I urge the Government to work with the embassies and the groups that have been so involved in this process and made such helpful interventions and comments to ensure that whatever very necessary arrangements they put in place to remind people both that they will have to apply for settled status and that pre-settled status is different will work as well and efficiently as possible—taking account of human frailty, if you like.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I support both these amendments. I will begin with the words of the noble and learned Lord, Lord Keen, from the end of our very long day yesterday:

“EU citizens in the United Kingdom are our neighbours, colleagues and workplace friends, and of course we value the contribution they make to the United Kingdom and wish them to remain here.”—[Official Report, 13/1/20; col. 552.]


I contrast that with a report from 10 October, when the Security Minister, Brandon Lewis, was quoted as saying that EU citizens who do not apply for settled status face deportation.

I ask your Lordships to put yourselves in the shoes of an affected citizen here in the UK, who may have come here quite recently or have been here for many decades, and think about which set of words you will have heard more clearly, which set of words will be affecting your sentiment and understanding of your place in the United Kingdom. I think everyone knows that what people will be hearing, worrying about and fearing are the words “threatened with deportation”. We are talking about up to 4 million people being affected. The latest figure I have seen is that 2.5 million people have applied for settled status. However, as the noble Viscount, Lord Waverley, said, there are also the 1.4 million UK citizens across Europe, for whom reciprocity means that they will be affected by how we treat their fellows here in the UK.

My arguments for these amendments fit into two groups. First, there are the practical arguments. As many noble Lords have said, to have a physical document will be immensely useful in dealing with landlords and immigration—just knowing that it is in your wallet or purse. There is also the fact that to have a declaratory scheme is far easier and far less daunting. That is a practical benefit. Those are the practical advantages. But there is also the question of sentiment—sending a message of welcome to our EU and other friends who are part of our communities. I urge noble Lords to back these two amendments, to back the message which the noble and learned Lord, Lord Keen, delivered last night and which the Government say they want to send to these citizens.

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[Baroness Williams of Trafford]

My Lords, I have spoken to my noble friends beside me and I have not had any feedback on resentment. I have had feedback on the fact that we have made the scheme free, which was a noble thing for the previous Home Secretary and Prime Minister to do. The fact that so many people now have a status they can prove can be only a good thing.

We are processing 20,000 applications every day. We are working with communities—sometimes on a one-to-one basis because some people find the filling-in of any application process difficult.

[Baroness Hamwee]

I am not sure whether I am hearing this right, but I think the Minister is responding to the amendments as if the proposal was to replace digital with documentary evidence. In fact, it is proposed that the documentary evidence would be supplemental to the digital provision.

[Baroness Williams of Trafford]

My Lords, I would not agree with two systems because that really would confuse people. If I could get to the end of my comments, I would be grateful.

The scheme already allows EU citizens protected by the agreements to obtain UK immigration status to enable them to remain here permanently after exit. Both EU citizens with pre-settled status and those with settled status will be able to continue to live, work and access benefits and services in the UK after the end of the implementation period on the same basis as now. If individuals with pre-settled status go on to acquire settled status, they will then be able to access benefits and services on the same terms as comparable UK nationals. This is consistent with the approach taken under EU law, and we will assess individuals at the point they apply for benefits or when accessing services such as the NHS.

The proposed new clauses would interrupt the flow of a system which is already working well and achieving precisely what it was designed and implemented to do, providing certainty to those people who have made their lives here.

Under the future immigration system, EU citizens who are in the UK before the end of the implementation period will have different rights compared to those who arrive afterwards. It is essential, therefore, that EU citizens have the evidence they need to demonstrate their rights in the UK. This is also why many other member states are planning to take exactly the same approach and establish a constitutive system for UK nationals living in the EU. I shall come on to UK nationals in the EU shortly.

The EU settlement scheme means that those who have built their lives here do not find themselves struggling to evidence their rights in the UK or having to carry around multiple bits of paper and documents to evidence their previous UK residence. As I pointed out to the noble Lord, Lord Warner, we are legally required to issue all successful applicants under the scheme with formal correspondence setting out their immigration status, and this status can also be viewed online and shared with others. We do not want to go back to issuing physical documents when our vision for the future is a digital status and service for all migrants.

I should perhaps make a point about data protection, on which some noble Lords are very keen—certainly on the Liberal Democrat Benches. Under the digital system, employers, immigration control or whoever it might be will have access to the information on a need-to-know basis: not everything will be written down on a piece of paper, which is an important consideration. A continued declaratory system in the form suggested by noble Lords in Amendments 2 and 3 would force banks and other service providers either to wade through various documents, which they perhaps have no right to see, to establish for themselves whether the person is protected by the agreements or has been granted rights while they complete the registration process as envisaged in Amendment 2.

Additionally, Amendment 3 would grant EU citizens automatically conferred rights under the agreements, creating two groups of EU citizens: those with a registration document and those with no evidence at all of their status. There is therefore a high risk of inadvertent discrimination, particularly for those with no evidence at all in years to come.

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[Baroness Hamwee]

My Lords, I have put my name to Amendment 10. As the noble Viscount said, judicial review—the right to apply to the courts to review the decision of a public body—is hugely important. I do not share the view that the courts have acted inappropriately and entered the political arena when they should not have, but, as he says, that is not the point.

[Viscount Hailsham]

I was not trying to suggest that, for example, striking down the Prime Minister was in any way wrongful. I would have done so if I had been in the Supreme Court. What I am suggesting is that quite often courts do intervene on executive matters. I certainly do not include in that the decisions made by the Supreme Court at the back end of last year, which I profoundly supported.

[Baroness Hamwee]

I was not seeking to have a go at the noble Viscount. If judicial review has grown inappropriately, that is a separate matter. It is dangerous if the Executive are seeking through this provision to protect themselves from proper oversight by the courts.

In the Commons, a Member said on rights of redress for EU citizens that

“appeal rights and judicial review are enshrined”.—[Official Report, Commons, 7/1/20; col. 330.]

The Minister endorsed that, at col. 336. But Clause 11(3) seems to “deshrine”—if that is a word—judicial review. I too am concerned that at the least we understand what we are doing, but, if it is as I understand it, that we do not do it.

[Lord Greaves]

My Lords, I added my name to the amendments in the name of the noble Lord, Lord McNicol of West Kilbride, on behalf of the Liberal Democrat group. I have one or two other amendments in this group. One is on the judicial review point, and I am perfectly happy to leave the lawyers to argue the case on that, which they know far more about than I do.

Amendment 6 relates to Clause 11(1), on appeals against citizens’ rights immigration decisions, which says:

“A Minister of the Crown may”—


I would prefer “must” but I accept that “may” means it is probably going to happen—

“by regulations make provision for, or in connection with, appeals against citizens’ rights immigration decisions of a kind described in the regulations.”

Clause 11(2) defines a “citizens’ rights immigration decision” for the purposes of the Bill and it talks about various kinds of entry clearance, decisions in connection with leave to enter or remain, a deportation order, and

“any other decision made in connection with restricting the right of a relevant person to enter the United Kingdom”.

That all seems fairly comprehensive. What I do not understand, which is why I tabled Amendment 6 to probe this, is what is meant by

“of a kind described in the regulations.”

Does it mean that some of the things listed will not be covered by the regulations and the right to appeal? If so, what is the Government’s thinking about which ones they may be, or do they intend that they will all be covered, in which case why does the kind have to be described in the regulations since it is set out here in the Bill?

On the question raised by the noble Lord, Lord McNicol of West Kilbride, and other noble Lords, it is fairly clear that many people who have been given pre-settled status because they have not been living in the United Kingdom for five years or, in some cases, cannot prove that they have been doing so. There is also a significant number of people—I have no idea how many—who have been living here for five years but whose applications have been found difficult, for some reason or other. Rather than refusing them, the scheme is giving them pre-settled status because establishing the true facts would take a lot of time, energy and workload and, as the Minister said, millions of people are applying. It would be helpful to know what proportion of the people who have got pre-settled status have been, or say they have been, living here for more than five years—in some cases, they have been here pretty well all their lives—and have been given that status to give them something without prolonging the argument. In those cases, does the provision that they will automatically get settled status once they have been here for five years still apply?

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[Viscount Hailsham]

My Lords, I very gratefully support the points made by the noble Baroness, Lady Hayter. I entirely agree with her; I think it is necessary to have a sunset clause, and if it is not necessary it behoves the Minister to tell us why. One of the central problems arising all the time is whether secondary legislation, whether affirmative or negative—I acknowledge that in this case it is very largely affirmative; I am aware of that—is unamendable. Statutory instruments are often published very close to the time when they are to be considered by both Houses, with the consequence that you do not get proper consideration by members of the public or people who have an interest in what is proposed. I hope that the Government will give serious consideration to a sunset clause. If we are told that two years is too short a time, let us have an argument about that. I am sure we could come to a date that would be acceptable to all parties. Could we please have a reason why a sunset clause is unacceptable in principle to the Government?

[Baroness Hamwee]

My Lords, my name is also put to the amendment. In the Commons, the Minister said that the clause enables the Government to

“maintain our statute book in accordance with the social security co-ordination provisions”.—[Official Report, Commons, 7/1/20; col. 323.]

That puzzled me, because they do not need this to do that. Both noble Lords who have spoken pointed out the potential problems. The noble Viscount, Lord Hailsham, reminded me that, so often when the House is asked to look at secondary legislation—or is given the opportunity to do so, having had to take positive steps to raise the issue—people who are affected and organisations that know about it make really valid and useful points. It does no good to the reputation of the House to be able to do no more than say, “Well, I’ll raise that in debate”, because we know that we cannot make any changes. I support what is proposed here; it is entirely sensible and in no way wrecking.

[Lord Howarth of Newport (Lab)]

My Lords, Clause 13(5) contains a Henry VIII power; it is admittedly constrained by the specific subject matter and context of the Bill, but is none the less within those constraints a wide-ranging power:

“The power to make regulations … may … be exercised by modifying any provision made by or under an enactment.”


Henry VIII clauses are in principle objectionable, and in principle the Government ought always to explain to us why they think they are justified.

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[Lord Bethell]

All the arrangements within this part of the Bill are heavily constrained to Title III of Part Two of the withdrawal agreement. There is therefore no need to escalate to questions of policy; if there are questions of policy, they will be brought to the House but in a completely different way. The purpose of this clause is to make sure that there are no conflicts or inconsistencies in domestic law that refer to the current commitments within the withdrawal agreement, which could give unfair treatment and uncertainty about the rights and benefits of the 5 million in the group of people who benefit from these arrangements. It allows Ministers to protect the entitlements—

[Baroness Hamwee]

Can the Minister point us to where in the clause we can find reassurance that, if there is a change in policy, it will not be dealt with through regulations?

[Lord Bethell]

That reassurance is not in the clause; it just does not provide the necessary powers, and without those powers, the ability to change policy does not exist. I hope that noble Lords will agree that the way in which it is written is tightly refined around the specific arrangements of implementing the detailed clauses in the withdrawal agreement. That is its confined and determined nature. What it does, in a focused way, is to allow Ministers to protect the entitlements of those in the scope of the agreements, and only that. It includes both EU citizens living in the UK, as the noble Baroness, Lady Hayter, explained, and UK nationals who have chosen to work in or retire to EU member states before the end of the implementation period. Many of those people will have lifetime rights within that agreement which may last many decades, and the effect of the changes of EU regulations will continue to need to be tweaked during those decades.

This power is therefore essential to give the Government the flexibility that we need to provide legal certainty to individuals subject to these rules as the EU social security co-ordination regulations evolve over time. We have an important duty to protect the social security co-ordination rights of those in this scope, to give them that confidence, and for the lifetime of these agreements. This power enables us to protect those rights, and without prejudice to any future system that would apply to those not covered by these agreements.

European Union (Withdrawal Agreement) Bill

Baroness Hamwee Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, the noble Lord, Lord Callanan, in his arguments against Amendment 27, said that it would be easily overtaken by events. That provides a great argument for the removal of Clause 33. The noble Lord, Lord Newby, pointed out correctly that the next deadline point is 1 July 2020. I confess that I looked at a website to check, and that is 168 days away. If you add in holidays, weekends and so on, and think about how many days that gives us to reach a point where we have to decide whether or not we are ready for the deadline of the agreement with the EU, it is a very short time indeed. The noble Lord, Lord Howarth, said rightly that the economy and companies—I am particularly concerned about small businesses—have been greatly damaged by the uncertainty around Brexit. Removing Clause 33 will take away another point of uncertainty and will give us stability instead of yet another deadline.

Earlier in Oral Questions, my noble friend Lady Jones referred to the false classification—subsequently withdrawn—of Extinction Rebellion in a police document as bringing the law into disrepute. Particularly among young people, it caused grave concern. As the noble Lord, Lord Newby, said, passing this Bill with Clause 33— with something we know the Prime Minister has accepted may have to be removed; we know that a one-line Bill can do that at any point up until 31 December—brings the law into disrepute.

There is also the risk of a crash-out if we get to the end of the year and do not have an agreement. There is a strong suspicion out there in the country—and perhaps among some in this House—that parts of the Government still seek that crash-out outcome. Leaving this clause in the Bill adds to that suspicion.

Finally, we know that the Prime Minister has found it very difficult to find ditches in this country; it has been very hard to identify ditches. I do not think that we want the Prime Minister to waste any more time roaming the country, seeking that ditch that he just cannot find.

[Baroness Hamwee (LD)]

My Lords, can I ask my noble friend a question? If he were negotiating any sort of agreement and learned that the other side had a self-imposed time constraint, would he not regard that as a huge advantage?

[Lord Davies of Stamford (Lab)]

My Lords, the noble Lord, Lord Newby, made an unanswerable case. Human beings have been conducting negotiations since the beginning of time, and over that period there have been certain common conclusions about the sort of approach to negotiations that leads to a favourable outcome and the sort that, on the whole, does not. That is part of the common wisdom of humanity. Part of that is that you are at a great disadvantage in any negotiation if you have time constraints greater than those of your counterparty. What we have here is a Government who want to impose on themselves a time constraint greater than that which applies to their counterparty, which is most extraordinary. Mr Johnson may feel that, after all these millennia, he can revolutionise human psychology, and that the conclusions that have been drawn from human experience up until now are no longer valid. I have had quite a lot of experience of negotiations in my life, both as part of a team and from conducting negotiations myself as a diplomat, as an investment banker, as a Minister and so forth. I know that most of those common wisdoms of humanity are valid and correct, and one veers away from them at one’s peril. If somebody behaves entirely irrationally, as appears to be the case in the Government at the moment, one has to ask whether there is perhaps some Machiavellian plot behind the behaviour that explains this irrationality. That is what worries me, because the obvious explanation of Mr Johnson’s behaviour is that he does not want a successful outcome at all. He wants a hard Brexit or a bare-bones solution. He does not want to say so; he does not want to take responsibility for saying so.

A bare-bones solution would leave out altogether these very important issues of our relationship on security matters with the rest of the European Union, the future of the common arrest warrant, the pooling system of information exchange, and so forth. It would leave out a number of very important matters that appear in other amendments on the Marshalled List today: such things as the Euratom relationship, the European Medicines Agency relationship, the future rights of British subjects living abroad to receive their full pensions in the country in which they have taken residence, and the availability of medical cover to British people finding themselves elsewhere in the European Union. All these are very important matters and of course they would be set aside at a stroke if there were a bare-bones solution. There would be no chance of regaining those benefits. It could be that Mr Johnson actually wants that outcome and does not want to be held responsible for the consequences—human, economic, et cetera—of that solution.

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I support everything the noble Lord, Lord Dubs, said, particularly about the argument that the noble and learned Lord, Lord Keen, did not use on Monday night but that one hears in the corridors: that there is no need for this provision here and it would be better placed in the immigration Act or in Immigration Rules. The noble Lord, Lord Dubs, has demolished these arguments, but I add one more to his. The provision in law now, Section 17 of the 2018 Act, and the provision in this clause—the Government’s new language—are about reciprocal obligations. We would be negotiating to get the other 27 to agree to take unaccompanied children who are in this country and would like to be reunited with their families somewhere in the 27. That clearly is not appropriate to Immigration Rules or the immigration Act, because it is about people leaving the country, but it is highly appropriate to the negotiation about to start. That is why it should be in this Bill. I support the amendment.

[Baroness Hamwee]

My Lords, I too have my name to this amendment. The noble Lord, Lord Dubs, has been very measured, as ever, in his introduction to this debate and it seems the noble Lord, Lord Kerr, gives an unarguable analysis of the position.

I have said of other provisions of this Bill and of the Conservative manifesto that they are dog whistles. If somebody thought that this was a useful dog whistle as a replacement for the 2018 legislation, they got it wrong. Like the noble Lord, Lord Dubs, I believe that the concern in this House for unaccompanied asylum-seeking children reflects public concern. We see them as children and seekers of asylum, not as immigrants whose numbers are to be kept down, and not as in any way other.

The Minister, the noble and learned Lord, Lord Keen, at the end of our day of the Queen’s Speech debate said that Section 17 of the last Act was no longer appropriate because the negotiations have already been started by other states. I cannot read into Section 17 that it refers to those negotiations. The noble and learned Lord is far too skilled a lawyer and wedded to good law to be comfortable with dog whistles in the form of legislation, and I am sure the same goes for the noble Baroness, Lady Williams of Trafford, if she is the one to be answering this debate. I hope this can be explained in more detail—unless, of course, I have misrepresented it. Laying a statement of policy—the requirement of this clause—is not getting the job done.

The noble Lord, Lord Kerr, said there are no other changes. There is one change in the way the terminology is used that I am puzzled about. The reference to the child’s “best interests” has moved from coming to the UK to joining a relative in the UK. I am puzzled about it, but even more bothered. What significance should we read into this? Noble Lords will realise that I do read significance into this. Again, can the Minister help? The new clause must mean something different from the original—which, as has been said, is very modest. In non-technical terms, it means a signal that the UK Government are rowing back from working internationally to protect a rather small number of children who have undergone and are undergoing experiences that few of us could cope with—or, of course, that they are bargaining chips, as has been suggested. I understand that suggestion. It is not just about leaving them stranded on a journey to sanctuary in appalling circumstances; it leaves them vulnerable to exploitation, abuse and the particular risks of getting across the channel. Withholding the right of family reunification is not the way to tackle the scourge of people smuggling and people trafficking. Please let no one say that it would be a pull factor, because it is the push factors that we need to have in mind.

To be positive, I have some questions. What can the Minister tell us about the progress of negotiations on the arrangements, given that the Government have expressed commitment to the principle of family reunion and supporting the most vulnerable children? I think all children are vulnerable. Surely it is not about putting this on the back burner. What discussions are they having with organisations that support families to reunite about the design of a replacement for the Dublin system? What plans are there for necessary domestic legislation? Of course, I would welcome their adoption of my Private Member’s Bill, but I know that is not how these things work.

Earlier this week, other noble Lords may have had an email from a group of “kids”, as they style themselves, from Sherington Primary School in Charlton. I cannot read all their letters, but I will read just a little from one:

“I can’t imagine what it would be like to lose my home, my parents and to have to leave my country. These children are completely alone and terribly vulnerable. Surely we can’t just turn our backs on them. I thought my country was better than that. Please reconsider.”


That is a kid from year 6 of a primary school. I thank the 14 kids, whose names I am not reading into the record for safeguarding reasons. They may be kids, but they display a very clear understanding of the importance of safe and legal routes.

[The Lord Bishop of Worcester]

My Lords, I am pleased to support this amendment, to which my friend the right reverend Prelate the Bishop of Durham has put his name. He is sorry not to be able to be in the Chamber today. A few weeks ago, we celebrated the story of Christmas. In the nativity, the happy events in a Bethlehem stable were followed by the more dramatic flight of the holy family to escape the violent persecution of King Herod. As we discuss this amendment, that story of the child Jesus and his parents fleeing from violence to a foreign land resonates loudly.

Children are among the most vulnerable victims of conflict, persecution and violence around the world. We all know that they do not choose to become refugees separated from their families. We as a nation can choose to reunite some families torn apart by conflict by offering children shelter, hope and a future. That is what I believe the majority of people in this country wish, and I am sure that is what the Government wish. This amendment seeks to ensure it by guaranteeing a safe, legal, effective and managed route for child refugees to join their families in this country.

As we prepare to leave the European Union, the United Kingdom has an opportunity to decide what kind of nation it will be and, very importantly, to communicate that to a watching world. The legislation we agree will send a powerful signal about what and who we value.

As has already been observed, this clause has provoked much concern. At a ministerial briefing yesterday, intended to reassure those of us who are concerned about it, I found myself puzzled. We were told of the Government’s excellent record, and that it will continue. That is good, but why then remove the family reunion obligation from primary legislation? We were told that the latter was constitutionally odd, and, further, that the Government need to ensure that their hands are not tied during Brexit negotiations. At the same time, we were assured that refugee children would not become bargaining chips in negotiations about anything else. We were told that there is a need for reciprocity, although the numbers of children going in the opposite direction, from this country to others, is minimal.

As I understand it, the Government maintain that this clause will not change anything. If that is the case, why not remove it? This amendment would reassure those who are nervous that this country will continue to be a place of safety and sanctuary for the most vulnerable refugees fleeing persecution and conflict: children. It would reassure everyone that the Government will uphold their commitment to those children and provide a measure by which we may all be held accountable for our shaping of this nation as a place of hospitality and welcome. That is surely worth a bit of constitutional oddity.

The story of Jesus and his parents fleeing their homeland for a place of safety is a story repeated millions of times over in our world today. Can we assure everyone that this country will continue to be a place of safety for children, especially those who have been separated from their families?

I commend this amendment and ask the Minister: will the Government reinstate their commitment to protect the most vulnerable of refugees: children?

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[Baroness Williams of Trafford]

I would find it offensive if the Government saw children as bargaining chips. I do not think that any Member of this House or the other place sees a child as a bargaining chip. The Government are seeking to undertake an arrangement in which there is reciprocity. It makes absolute sense that we have reciprocal arrangements with Europe. We might be leaving the EU but we are certainly not leaving Europe, and children here will have family in the EU, just as children in the EU will have family here. We are seeking reciprocity, and Dublin III, as my noble and learned friend said, will be ongoing to the end of the implementation period. Please let us have no more comment about bargaining chips, because the legislation seeks to do the best by all children, whether they be in the EU or the UK.

[Baroness Hamwee]

Before the Minister moves on, I do not understand the answer to the noble Lord, Lord Kerr, although perhaps reading it will help. None of us wants to think the worst of the Government over this matter. It might be helpful if noble Lords could see a copy of the letter that went to the Commission in October. It has been referred to several times but I do not think that it has been seen by any noble Lord.

[Baroness Williams of Trafford]

I am not sure that I can give that undertaking but I will certainly request it. I will also come on to the noble Baroness’s question about the words “best interests” appearing in subsection (1)(a) but not in (1)(b). The phrase “equivalent circumstances” in subsection (1)(b) duplicates that. She might like to take a look at that and, if she is not content, I will be happy to go through it with her.

The noble Baroness, Lady Sheehan, talked about the gap, and my noble and learned friend Lord Mackay pointed out that Dublin III will exist until the end of the implementation period. My noble friend Lord Elton asked for the definition of “relative”. I think that there has been another misunderstanding—that all the relatives were listed in Section 17 but do not appear in Clause 37, although they do. A relative in relation to an unaccompanied child means

“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 … a parent, grandparent, uncle, aunt, brother or sister of the child”.

That is quite an extensive list and I hope that that helps my noble friend.

I shall finish on the words of my noble and learned friend Lord Mackay. Section 17 in and of itself gives no rights to children. Through Clause 37 we are attempting to lay out our intentions. We have done so in the manifesto and have already started talks with the EU on this subject. Our commitment to children has not changed.

European Union (Withdrawal Agreement) Bill

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

37: After Clause 37, insert the following new Clause—
“UK citizens resident in the EU, EEA or Switzerland: protection of rights
(1) The Secretary of State must make arrangements to preserve, as far as is possible, the United Kingdom’s obligations under EU law to British citizens who are resident in any EEA country, or in Switzerland, on the day before IP completion day.(2) The arrangements in subsection (1) must include—(a) arrangements for people in receipt of a United Kingdom state retirement pension to continue receiving that pension under the same uprating and other arrangements as apply on the day on which this Act is passed, for the rest of their lifetimes as long as they remain resident in any EEA country, or in Switzerland,(b) arrangements for British citizens to continue receiving the same level of publicly provided healthcare as they do currently as EU citizens.(3) The duty in subsection (1) applies whether or not the United Kingdom reaches any relevant reciprocal arrangements with other EEA member states, or with Switzerland.”Member’s explanatory statement
This new Clause requires the Government to take steps to preserve the rights of UK citizens living in the EU, EEA or Switzerland, including continuing to uprate UK state pensions and paying for publicly provided healthcare.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, this amendment is in my name and that of my noble friend Lady Miller of Chilthorne Domer. I do not know whether she shares my feeling when I see noble Lords leaving the Chamber that we have a challenge in making this riveting. But it is a matter that was referred to by a number of noble Lords on the first day in Committee on the Bill. They rightly drew attention to the UK’s responsibilities to British citizens who are now living and working in the EU. This amendment seeks to protect their rights to preserve after the implementation period the rights which they enjoyed immediately before the implementation period completion date.

The UK has responsibilities, and there are things that the Government can do. Not everything has to be reciprocal. There are about 1 million UK nationals in the EU, and it is for them that this amendment is proposed. Reciprocity is of course desirable, but it is not clear to me why technically it is essential over all policy areas, because it seems that there are choices for the UK.

I am a member of the European Union Justice Sub-Committee of the EU Committee of your Lordships’ House. In October, following an evidence session on this subject, the chair wrote to the Government telling them that the sub-committee had been informed that they could do more in a number of areas, with various assurances, including that the UK should continue to fund healthcare for those to whom it is liable at Brexit until new agreements are made, and should commit to uprate the pensions of UK nationals living in the EU for as long as they continue to live there. I shall quote extensively from the letter, because it says everything, very clearly, that I want to say:

“The situation means that many UK citizens have lived in a state of anxiety and uncertainty for some time. Many moved to the EU decades ago with a reasonable expectation that the rights to which they were then entitled would not be removed without due notice and consultation.”


The committee had heard evidence that

“the consequences of some of the actions of the UK Government may be actively counter-productive. For example, a failure to uprate pensions after 2023”—

the Government have committed to uprating them for three years—

“could result in UK nationals … being forced to return to the UK”—

and this is not what they would want to do—at expense, including expense to the UK Government, who would be,

“required to meet the costs of their future healthcare, any welfare benefits,”

and so on.

“Many pensioners may wish to return to the UK but may realise insufficient funds and be forced to seek public sector housing.”


So the questions arising from this are: what assessment have the Government made of the potential costs to the UK taxpayer of such returns, and what analysis have they conducted of the likelihood of this outcome, and of course the potential number of people involved?

The committee was concerned about the impact on individuals and UK businesses, particularly those that have offices in the EU. The committee heard how social security rights, for example, are currently protected when workers move through the EU, but that after Brexit they will no longer be able to aggregate contributions and build up entitlements to pensions if they move between EU countries for work. So, again, there are questions about the work that the Government have done to assess the problem and seek solutions.

The point goes wider than the UK state pension and healthcare, but those are the points on which we have particularly asked for assurances. There are about 180,000 British-born pensioners living in the EU. They, like us, will have worked, or will work, paying contributions and taxes in the UK. When they left the UK, the right to pension increases for life was guaranteed. I suspect that we have all been made aware through direct representations over the years of the position of pensioners in, for instance, Australia and South Africa, whose pensions have not been uprated. Are we prepared to put many more people in the same position?

As for healthcare, I do not think that I need to stress the importance for both working and retired people. As I have said, there is a danger of the Government’s actions, or inactions, being counterproductive. These are urgent matters. The individuals need to take decisions, but they should not have to. When they moved, they believed—and, no doubt, relied on the fact—that there would be no change to their situations as a result of their move.

--- Later in debate ---

Finally, it is worth repeating a point that has been made several times in Committee. It is vital that we restore the traditional division between government and Parliament to ensure that the negotiations ahead can be carried out with flexibility. With that in mind, I ask the noble Baroness, Lady Hamwee, to withdraw her amendment.

[Baroness Hamwee]

My Lords, I knew that once we got going on this subject it would reel in Members from the across the Committee, and I am grateful for their observations and contributions, as well as to the Minister, of course. He started his response by referring to confidence in the system being essential and finished it by referring to the need for flexibility. I am not sure that those two notions can live together very comfortably.

On the issue of uprating for life, the Minister said that that is being protected where it is unilaterally possible to do so while the person remains in an EU state. That raised the question that the noble Lord, Lord McNicol, intervened on, which is: what if the individual moves? At the moment the protection would be in place. He also used the phrase “in scope” but I am not sure what that means in this context. But perhaps most importantly, he talked about the protections broadly remaining the same, which is the terminology used on the government website, which refers to, “broadly the same entitlements”. What is also apparent when one looks at the website more closely, and certainly as I understand the position, is that the withdrawal agreement protections are dependent on there being a deal. I end by echoing my noble friend’s plea made for the Government to make detailed information much more widely available and comprehensible. These are technical issues and I accept that finding the right language is a problem, but if there was no problem, we would not have been receiving representations about the issue. If all that comes out of today is better communications, that will actually be a good deal of progress. Leaving the Minister with that plea—it is more than a request—I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

European Union (Withdrawal Agreement) Bill

Baroness Hamwee Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I venture to suggest to your Lordships that it is sometimes wise to address and solve problems before they occur and to avoid the distress that otherwise would occur. In my nine and a quarter years as Independent Reviewer of Terrorism Legislation, I often stood at border posts, airports and sea ports, watching people being stopped, sometimes for absolutely no reason. But, whether there was a reason or no reason, one saw the shades of emotion of the people who were stopped, ranging from real distress to quiet acquiescence. The advantage of the simple measure suggested in this amendment would avoid the distress; it would mean that speeding through the border post really was quick, and we would solve a problem that is bound to occur if we do not resolve it now.

[Baroness Hamwee (LD)]

My Lords, I am glad to follow the noble Lord, Lord Carlile, on that point. In Committee, the Minister thought that I was advocating two separate systems: a digital one and an analogue paper system, if you like. I was not, and neither is my noble friend Lord Oates; he used the term “alongside”.

The Minister was also concerned that a physical document would be forgeable. There are many documents in use which are sensitive and important. Yesterday, I fished out from my office my Disclosure and Barring Service enhanced criminal record certificate. That is on watermarked paper; so is my copy of my birth certificate, a certified copy which is watermarked, though I discovered—I had not realised this—that the seal on it is not actually impressed. So why not have a physical document?

European Union (Withdrawal Agreement) Bill

Baroness Hamwee Excerpts

Report: 2nd sitting (Hansard) & Report stage & Report: 2nd sitting (Hansard): House of Lords
Tuesday 21st January 2020 Lords Chamber

[The Lord Bishop of Durham]

My Lords, I speak once more from these Benches, recognising that the argument has been made again and again. I am honoured to follow the noble Lord, Lord Kerr, and to concur with all that he said. As my right reverend friend the Bishop of Worcester reminded the House last week—he kindly spoke for me because I could not be present in Committee—this debate resonates with the nativity story, the story of a child fleeing persecution. The voices of these children are too often drowned out by conflict and violence, by traffickers and by political leaders. Let this House speak on their behalf by voting for the amendment.

I shall try to explain again why the Government’s change is proving to be so difficult for those who work with migrant children to accept, and thus why many in this House find it difficult too. As the noble Lord, Lord Dubs, reminded the Committee and then the House just now, the Government opposed his amendments on previous occasions. The law as it stands was hard fought for; it was not easily won. Thus, the proposed removal appears to be the Government saying, “Well, we never really wanted the Dubs amendments, so now here is a chance to remove them.” I note that in the Conservative Party manifesto there is a reference to welcoming refugees, but the lack of a specific reference to child refugees and family reunion simply adds to public concern.

I fully accept the Minister’s personal commitment to migrant children. I also accept that there is every intention to offer a welcome and maintain family reunion, but what the Government’s proposals have conveyed is quite the opposite. I wrote to the Minister with a suggested compromise, accepting in my letter that it might not work as a proposal, but I am struggling to understand why the Government cannot see that the message they are conveying at present is a negative one, whatever their good intent.

From these Benches, my right reverend colleagues and I view this issue as a moral bell-wether for the future of our country. We want to be known as a country that is welcoming, compassionate and committed to playing our full part in responding to the deep issues that arise from the reality of refugees around the world. I believe that the Minister and the Government want to act with compassion; it is simply that what is proposed does not convey this.

The noble Lord, Lord Dubs, mentioned that, for some, this is cast as an issue of trust. Do we trust that the Government will deliver their promises to vulnerable children without legislative assurance in the EU withdrawal Bill? However, to my mind, this is a matter not simply of trust but of priority. Where do the Government’s priorities lie? It is important that they can negotiate a good deal for this country with our European neighbours, but we cannot set this against our responsibility to protect vulnerable children. That is what Clause 37 suggests: that the Government’s priorities necessarily mean that we cannot give legislative assurance that we, as a nation, will provide for vulnerable children to be reunited with their families in safety. I am sure that that is not the Government’s intention, but our actions testify to our values. The action of including Clause 37, removing the family reunion obligation from primary legislation, speaks louder and will be heard further beyond this place than promises of other legislation yet to be enacted.

Ensuring that there are safe, legal, effective and managed routes for child refugees to be reunited with their families in this country must remain an imperative. Schemes such as community sponsorship—here I declare my interest as a trustee of Reset—are an international gold standard for how to welcome refugees and provide new opportunities for those who have lost so much. We can hold our heads high because of the Government’s work in recent years to support refugee resettlement here. Now is not the time to contradict this good work with the consequences of Clause 37. Will we be open, sharing our prosperity and opportunity with children who deserve so much more than the precarious life of a refugee and have so much more to offer, or will we be closed to them, shut off from the world and our responsibilities as a global power? I believe the choice is clear, which is why I have added my name to this amendment. I urge others to support it and the Government to accept it.

[Baroness Hamwee (LD)]

My Lords, I too have added my name to this amendment, as I did at the previous stage. Like others, I thank the noble Lord, Lord Dubs, who is in danger of becoming a noun. I have been wondering whether and actually hoping that Clause 37 might be the result of the attentions of—if I can put it this way—an overly diligent draftsman who has failed to see the wider picture of how this looks; in modern parlance one would say the optics. We were told that a statutory negotiating objective is neither necessary nor the constitutional norm. It might not be necessary but it is not unnecessary either, and is the constitutional norm such a straitjacket of a convention that we cannot say what we mean in legislation?

As ever, the noble and learned Lord, Lord Mackay, put the constitutional point very clearly at the previous stage. He said that Clause 17 of the 2018 Act is

“an instruction to the Executive to open negotiations in a certain way”,—[Official Report, 15/1/20; col. 760.]

and that it is not up to Parliament to give instructions; I hope I have represented him properly. But as noble Lords will recognise, and as the noble Lord, Lord Kerr, has said, Section 17 is only about opening the negotiations and seeking to negotiate. Without even getting into the relationship between Parliament and the Executive, where is the harm? Even if it is not how it is normally done and even if it is not terribly elegant, it makes Parliament’s view clear and it was accepted by the Executive in 2018.

I am on the same page as the noble Lord, Lord Kerr. I am puzzled and a bit suspicious, because when there is a rather technical point or amendment—we are being told that this is a technical point—on a sensitive issue, my antennae naturally twitch. The more the Government tell us that they are not making any real changes, although they have changed the words, the more my antennae wave around, trying to catch hold of what this is all about. I am not surprised that the phrase in the Minister’s letter about carrying out negotiations

“with full flexibility and in an appropriate manner across all policy areas”

was much referred to. Section 17 does not restrict that, although it does not mention reciprocity, as the Government did—but I do not think that that is material.

I raised a point last week about the differences in the wording for the child’s “best interests.” Under the existing provision, the child’s best interests are referred to in the context of coming to the UK. Clause 37 applies the best interests to joining a relative. I think that both of those are important. The Government assured us that there was no significance in that, but I do not want to let something that might be important go unchallenged. The Minister referred me to the term “equivalent circumstances”—she is nodding at that—but it is not in the same part of the clause. It is in subsection 1(b) rather than 1(a), so I do not think that that answers my “best interests” question. I also asked the Minister last week if she could make available a copy of the letter sent last October to the Commission which she said should reassure noble Lords, but she was not sure whether she could. As she has not been able to pursue that, I assume that it is not available, but perhaps she could confirm that.

I come back to the proposed change. It must mean something. It does not make the very modest objective of Section 17 any more achievable—certainly not to most noble Lords who have spoken. Noble Lords will understand that given the subject matter of the clause and the relatively few individuals subject to it, there is a strong feeling that Parliament should not reduce our commitment to these children to safe and legal routes or–this was a point made by the right reverend Prelate—to be thought to be doing so.

[Lord Hamilton of Epsom]

My Lords, as the noble Lord, Lord Dubs, made clear in his opening remarks, this is a question of trust. He seemed to suggest that he trusted my noble friend the Minister but did not trust the Government. I am not sure how happy my noble friend is about being described as a sort of semi-detached member of the Government—but let us ignore that. Actions speak louder than words. The Government have a very credible record in allowing child refugees into this country. I think we run third among EU countries that have allowed in child refugees. Given that, the only basis on which this amendment can be supported is the belief that, if it is defeated, the Government will then stop taking in any further child refugees. I think that that defies all credibility; I do not think that there is any possible basis to support that thesis and I take the view that we have done very well on the question of child refugees and that if it’s not broke, don’t mend it.

European Union (Withdrawal Agreement) Bill

Baroness Hamwee Excerpts

Consideration of Commons amendments & Ping Pong (Hansard): House of Lords & Ping Pong (Hansard)
Wednesday 22nd January 2020 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, I would like to express my personal appreciation for the way in which the noble Lord, Lord Callanan, has handled his responsibilities at the Dispatch Box. Although I am somewhat anomalous on this side of the House in being—if the noble Lord Cormack, will allow me to say—in favour of leaving the European Union, none the less, I am sure that many of my colleagues have also respected the hard work and the gracious spirit in which the Minister has presented the case on behalf of the Government.

However, I cannot agree with his commendation of these so-called Commons reasons. It is disappointing for this House that the Commons has dismissed the amendments that your Lordships’ House sent to them, with no serious consideration whatever. That represents a failure to recognise and respect the proper constitutional role of this House. In the proceedings on this Bill, this House has not sought to obstruct the Government’s purpose in passing the withdrawal legislation. Everybody in this House accepts that the Government have a mandate to do so, and everybody understands the time constraints. None the less, this House sought to improve the legislation in important respects.

My noble friend Lord Dubs, and the noble Baroness, Lady Deech, have made the case very well indeed in respect of the issue raised in the Dubs amendment, but there were also important constitutional issues that arose from the Bill, and they are not negligible. They concern, for example, the formal processes and the spirit in which the Government seek to relate to the devolved institutions as we withdraw from the European Union and develop the new relationship. They concern the excessive Henry VIII powers that the Government have chosen to take in this Bill—one of them, very importantly, providing for the Government to take powers, by regulation, to intervene in the realm of the judges in determining how they should handle European retained law.

There are other areas, including Clause 41, which has provided a very large, very extravagant opportunity for the Government, by regulations, to abolish or amend, in substantial respects, primary legislation. It is not just legitimate but our duty to have considered these matters, and it is disappointing that in the other place, the Government, Ministers and Members of Parliament have not thought it worthwhile to give any significant consideration to these issues. Taking back control of our laws should represent a full restoration of parliamentary government, and a full restoration of parliamentary government should mean a proper working relationship between your Lordships’ House and the other place. It should not mean a new excrescence of, to use that memorable term coined by a very distinguished Conservative, Lord Hailsham, the “elective dictatorship.”

[Baroness Hamwee (LD)]

My Lords, I simply have one request for the Government. What will shortly become Section 37 provides for a statement of policy within two months. The Minister talked about reassuring noble Lords. Those who need reassurance are EU citizens—those covered by my noble friend’s amendment—and those affected by the child refugee situation. I hope that the Government, who have told us that they have been negotiating, can bring forward a statement of policy well before the end of the two months.

[Baroness Ludford (LD)]

My Lords, I am not quite sure why the noble Lord, Lord Callanan, singled me out for mention. I think that I must figure in his worst nightmares—which obviously delights me.

He referred to it taking three years to get the withdrawal agreement approved, but I remind him and the Benches opposite that the failure to approve it sooner was due largely to the refusal of Brexiters to support previous efforts. We remainers do not accept responsibility for Brexit or for the negative consequences that it will entail. We have played our part responsibly in trying to improve the process and the outcome of Brexit, as we have on this Bill.

I am glad that this House was not bullied or intimidated, and that it has improved the Bill. In better times, the thoughtful contributions that we made would have received a more respectful response from the Government—I agree, for once, with the noble Lord, Lord Howarth—but the Government were dogmatically determined to refuse any positive improvement to the Bill. So here we are, and we will see what happens in the months and years to come.