European Union (Withdrawal) Bill

Baroness Hamwee Excerpts

Tuesday 30th January 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I asked a sixth-form politics class the other day what the phrase “House of Lords” brought to mind. I expected “ermine”; I got “not elected”, “scrutiny” and “red”—spot on, of course, as regards the issues arising from this Bill, though I will happily discuss tapestries with the noble Lords, Lord Dobbs and Lord Campbell.

I recently asked a Question about Home Office statutory instruments derived from EU legislation. The Answer was,

“we are not in a position to give a sense of scale at this time”.

That was as recently as last month and it encapsulates the widespread view that the Government are floundering. Even if they do not agree with the policy, people expect competence and coherence.

The procedures that the Bill puts in place must be fit for the job—quite some job. This of course includes, as noble Lords would expect me to say, seeking the opinion of citizens—a word I am more comfortable with than “people”—on the terms. I am of course concerned, as others are, about the powers that the Executive seek to keep for themselves, and about public bodies which may not put transparency, let alone accountability, high on their agenda.

This House’s culture, as we would all agree, is one of rigour in its scrutiny. We should not only capitalise on that, but address how we co-ordinate with the Commons and not simply operate in parallel with it. We should also address the absence of real power to deal with what may be secondary but is after all legislation, which is maybe a big part of the reason why the Commons have over the years been less focused than we have on statutory instruments. The term “appropriate” is one which, to my mind, should rarely have a place in legislation. What is appropriate is often in the eye of the beholder. We are lucky to have such big brains here who can see both the big picture and the detail regarding, among other things, delegation and legal certainty.

One of the big rule-of-law issues is the non-retention of the European Charter of Fundamental Rights, singled out as the exception to the objective of continuity. The Government assert that it is unnecessary, the noble Baroness the Leader of the House today used the term “reaffirms” and occasionally the Government claim that it adds “extra” undesirable rights, although I cannot quite reconcile all of those. The Joint Committee on Human Rights, of which I am a member, has corresponded with the Secretary of State about the charter. I felt as confused as Alice, though perhaps without the wonder, by some of the responses. To a request to list the instruments that underpin the provisions of the charter but which are not incorporated into domestic law, we were told:

“We are not entirely clear which instruments are being referred to”.


Well, quite; that was our point. The JCHR has published a commentary on the Government’s right-by-right analysis of the charter, dealing, crucially, with the remedies by which those rights are enforceable, from Article 1, the right to human dignity, which is not a distinct right set out in the ECHR so there is no enforceable right conferred on individuals, to Article 50, the right not to be tried or punished twice for the same offence, to which the same, although we have the common-law protection. I hope the JCHR’s work will be helpful to noble Lords’ dissection of Clause 5.

Lastly, I want to refer to another major uncertainty, this time a personal one: that of EU citizens in the UK and of British citizens elsewhere in Europe. We were all told there would be no change to our laws the day after exit day, while they were told their position would be unaffected. That is patently not the case, since they are going to have to apply for status. They were the “first priority” but the Government gave every appearance of being dragged towards items in the progress report of last December, and of course they are within the caveat of “nothing agreed until all is agreed”. There will be immigration rules and the more complicated they are, the greater the likelihood of errors, with an added hurdle provided by the Data Protection Bill regarding restrictions on access to data where immigration control is concerned. Meanwhile there are deportations of EU citizens that are not in accordance with the directive, which allows only for cases of current threats to society or security. I mention that with a view to the nature of our society, but sadly the noble Lord is no longer in his place.

Recently I was asked by someone in his 20s what the major considerations were at the time of the 1975 referendum. I talked to him about the aim of “No more war in Europe”. He was very struck by how that has morphed into economic arguments. Well, not entirely: this is about individuals’ lives.