European Union (Withdrawal Agreement) Bill

Lord Greaves Excerpts

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

[Lord Greaves (LD)]

My Lords, there seems to be a body of opinion on the Conservative Benches that there is a great pressure group in this House seeking to wreck this Bill and to stop it happening so that the 31 January deadline cannot take place. That is complete rubbish, and it would be far better if Members on the Government Front Bench and Conservatives joined us in scrutinising the Bill properly, which is our function, and stop raising hares which do not exist.

We are already having an extraordinary procedure—six consecutive sitting days on the Bill—which I have never seen before. That is a huge concession made by the usual channels but, if we are not supposed to properly scrutinise and perhaps revise the Bill, why on earth are we going to spend six days discussing it? It is nonsense. There is a general consensus among everyone in this House that the Bill will pass at the end of next week, and we will do everything possible to assist in that happening. That does not mean that we do not have to do our job.

One or two speakers—I will not name them because I am about to attack them—have made the suggestion that the future of this House is in danger if we do our job properly on this Bill. That is bullying, and I do not react to bullying in a way that allows it to happen. There are two ways to deal with bullies: one is to bully them back, which we do not have the option to do here; and the other is to ignore them, which I suggest we do.

A long time ago, the noble Lord, Lord Cormack, said that it is the will of the people that we should leave, which has been repeated by various people, but the noble Duke, the Duke of Somerset, pointed out that less than 30% of people had voted for the Conservatives. In practice, in 2017 the Conservatives received 43% and had a minority of 10 seats, and in 2019 they received 1% more, 44%, and a majority of 80 seats. As a Liberal, I could spend a long time ranting about the iniquities of our rotten and corrupt electoral system, but it is probably not relevant now. The fact is that, whether or not some of us like it, the election was a landslide for the Conservatives as far as the House of Commons is concerned and in practical terms that is what matters.

The noble Lord, Lord Taylor of Holbeach, said that our revising responsibilities are important but that we should not undertake them this time. If this House has an important revising function, surely it is in difficult times that we should make sure that we do it properly and not lie down and be bullied.

On 9 January, in the House of Commons, I think during the Third Reading debate, the Minister, James Duddridge, said:

“just as we will be watching the House of Lords carefully next week, they have been watching us carefully during the Bill’s passage. They will have listened to the change in tone and seen the majorities by which votes were won”—

quite right—

“and I am sure that they will reflect on that in their deliberations, doing a proper job of scrutiny as part of the whole democratic process”.—[Official Report, Commons, 9/1/20; col. 652.]

That is the Minister in the Commons telling us to do a proper job of scrutiny, and I do not think we should resile from that in any way.

The noble Lord, Lord Cormack, said that there is euphoria in the Commons. I am sure there is in a majority of the Commons, but many MPs seem to be in a state of shock, not euphoria. However, out in the country there are still many angry people. It is not the will of the people that Brexit should be done, as the noble Viscount, Lord Ridley, said, but the will of half the people. The country is divided, and there are angry people on both sides. Many people who think we should stay in the European Union are shocked—they cannot understand what has happened and why it is happening—and are in a grieving process. To be euphoric, mint silly coins and organise triumphalist fiestas will not get anywhere. However, on the other side, many leavers are still angry because they do not understand why we are still debating it. They do not understand why that is happening and, given that there will be a huge amount of news about it for at least another year and perhaps beyond, it is time that the Government started telling people the truth about what is happening and why Brexit is not yet done.

European Union (Withdrawal Agreement) Bill

Lord Greaves Excerpts

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

Moved by

[Lord Greaves]

1: Before Clause 7, insert the following new Clause—
“Rights of European citizens resident in the United Kingdom
(1) This section applies to citizens of the EU, EEA and EFTA nationals and Swiss citizens who are ordinarily resident in the United Kingdom on exit day.(2) Except as provided for in this Act, following exit day all persons mentioned in subsection (1) have the rights, status and obligations which applied to them before that day.(3) The provisions in this section apply to the children and other dependent relatives of such persons whether or not they were ordinarily resident in the United Kingdom on exit day.(4) The rights referred to in subsection (2) may not be amended or removed except by primary legislation.”

[Lord Greaves (LD)]

My Lords, it seems slightly odd that we launch into Committee at Clause 7 but that is the way it is. It comes at the beginning of Part 3 of the Bill, which is the extremely important part referring to the European citizens who now live and work among us and the question of what will happen to them when we leave the European Union. It is about settled status and the future of a very important part of our community.

This is the first time that the details and principles behind the settlement scheme have really come to Parliament. Before now, the matter has been dealt with through orders and regulations under the Immigration Act and by ministerial diktat. It is interesting that today the Law Commission is saying that the Immigration Rules are not fit for purpose and proposing that they have a thorough rewrite. Can the Minister tell us when the Government will respond to that and whether it is likely to happen? It would be very welcome indeed.

This is not a carefully honed amendment that can be fitted into the Bill; that will come in Amendments 2 and 3 tabled by my noble friend Lord Oates. It is a declamatory amendment; it states a principle and a promise made, which very large numbers of the people it affects—European citizens living here—believe has not been, and is not being, carried out in full.

Before the referendum, back in 2016, Boris Johnson, Michael Gove and Priti Patel issued a statement. It was not a government Statement, but they are now the Prime Minister, the Chancellor of the Duchy of Lancaster—who has been tasked with getting Brexit done—and the Home Secretary, so they are pretty important people in the present Government. The statement said:

“There will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.”


The words “automatically” and “no less favourably” are now in considerable doubt.

On television this morning, the Prime Minister, Boris Johnson, was talking about really important things in relation to the Elizabeth Tower and Big Ben. He explained that

“we need to restore the clapper in order to bong Big Ben on Brexit night, and that is expensive. The bongs cost £500,000 … but we are working up a plan so that people can bung a bob for a Big Ben bong.”

I had to read this carefully—and listen to it carefully on the BBC this lunchtime—to be quite sure of the last word. I am assured that it did end in a “g” and was not some other word which might have meant something different, and which I might have had difficulty saying in your Lordships’ House. Having said that

“we need to restore the clapper in order to bong Big Ben on Brexit night”

the Prime Minister continued that they

“have not quite worked out how to do it.”

Yesterday at Second Reading, I said that people who have won the Brexit debate should not be triumphalist. People may be euphoric and have the kind of “paroxysms of joy” that the Prime Minister has described in the Sunday Times—the suggestion was that there would be a baby boom as a result of these paroxysms, which is why I wondered whether the word “bong” was right—but that will not do any good in bringing this country together and healing the serious wounds that have been, and continue to be, caused by the whole Brexit debate. Many people in this country, far from being full of paroxysms of joy, sexual or otherwise, are full of dismay and distress—

[Noble Lords]

Oh!

[Lord Greaves]

Noble Lords can moan. People are crying when they go to sleep at night and when they wake up in the morning, and all they get from the unfeeling, hard-headed Tories is moans. People are feeling a sense of loss, which is akin to bereavement and a grieving process has only just begun. In these circumstances, triumphalist behaviour, festivals of Brexit and all the rest will simply make things worse. The people who feel it the most are the many citizens of the EU who live, work and take part in our communities in every way. There are said to be 3.6 million of them—that was the guess of the Office for National Statistics, although a lot of people think it is rather more. In addition to the EU citizens there are families, UK citizens, spouses, partners, relatives and friends. Families and marriages have already broken up as a result.

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[Lord Grocott (Lab)]

The noble Lord just made a comparison—I am slightly reeling from it—between Britain on 1 February of this year and Nazi Germany in 1933. Could he elaborate on that a little, because that seems to me to be stretching the point a bit?

[Lord Greaves]

We will see. What we know is that the day after the referendum, people’s windows were put in, people were abused in the street and paint was daubed on people’s houses. That is the kind of thing I am talking about. From talking to European citizens here, I know of people who are now reluctant to go into shops if they are not known in them, because of their accent and the attitude people might have towards them. This is quite widespread; I am not saying it is very frequent, but it is going on. I know plenty of instances of people being abused in the street and shouted at, and even more instances when people have, quite kindly, said to people, “I suppose you’ll be going home now.” That is happening all the time. It happened immediately after the referendum and I am very worried that on 1 and 2 February there will be a wave of this kind of thing. Police statistics show that the number of racially motivated offences has increased significantly since June 2016. I am not making it up; it is happening. Noble Lords who perhaps live a sheltered life might get out there a bit more and find out what is going on.

I believe that the Government are not fulfilling their promises—or promises that three leading members of the Government made—and the least they ought to do is explain why and apologise for it. I do not imagine that they will do that, but they ought to. The least we ought to do is make appropriate amendments to the Bill—some of those coming through—to improve it. If the House of Commons throws it out, so be it. That is our duty as unelected people on behalf of people who did not have votes. I beg to move.

[Lord McNicol of West Kilbride (Lab)]

My Lords, the amendment moved by the noble Lord, Lord Greaves, would grant an automatic continuation of pre-exit-day rights and immigration status for EU citizens resident in the United Kingdom. This is a position that the Labour Party has consistently supported. Indeed, the party put forward amendments to that effect when the original Article 50 Bill was considered. However, the then Prime Minister resisted any amendments to that Bill on this issue.

The Government waited a long time to announce that they would unilaterally guarantee the rights of EU citizens resident in the UK, even in the event of a no-deal exit. However, regarding this amendment, the reality is that the settled status scheme has now been operational for some time and the withdrawal agreement was negotiated on the existence of such a scheme. As such, while we sympathise with the thrust behind the amendment of the noble Lord, Lord Greaves, we believe that a better approach is to reform the current system, as the next group of amendments aims to do.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank the noble Lords, Lord Greaves and Lord McNicol, for their comments. The initial points made by the noble Lord, Lord Greaves, were about Immigration Rules. There will be an update in March. He made some points about Big Ben; I was not sure what they were. He also talked about gloating, but I do not observe any member of your Lordships’ House gloating over the Bill and I concur with the noble Lord, Lord Grocott, that comparing the UK on 31 January to Nazi Germany is a step too far.

To get to the point of what the noble Lord eventually said, we reject the proposed new clause in Amendment 1. It is well intentioned but unnecessary; it conflicts with our general implementation of the withdrawal agreement, the EEA EFTA Separation Agreement and the Swiss citizens’ rights agreement. For brevity, I will refer to these as the agreements. My references to EU citizens should likewise be taken to include these EEA/EFTA and Swiss nationals, and their family members.

Citizens’ rights have been a priority in negotiations and the Government have delivered on that commitment, reaching agreements that provide certainty to EU citizens in the UK and to UK nationals in the EU that they can continue to live, work, study and access benefits and services broadly as now. Clauses 5 and 6 create a conduit pipe, which makes the rights and obligations contained in the agreements available in UK law. This is intended to replicate the way that EU law applied in the UK while the UK was a member state, and these clauses ensure that the rights contained in the agreements are available to EU citizens in the UK. The agreements provide certainty and protect the rights of EU citizens lawfully resident in the UK before the end of the implementation period. Existing close family members, including children of those covered in the agreements, will also have a lifelong right to family reunion. The as-yet unborn children of EU citizens will also be protected. This protection applies equally to UK nationals in their member state of residence and is guaranteed by the withdrawal agreement.

The UK has already introduced the EU settlement scheme, which is the means for EU citizens to obtain the status that confers rights under the agreements. The scheme provides a quick and easy way to do this, and it is a success. According to the latest internal figures, over 2.8 million applications have been received and 2.5 million grants of status made. The Home Office is processing up to 20,000 applications a day. We are working tirelessly with communities up and down the country to raise awareness and keep up this momentum. The scheme already allows EU citizens protected by the agreements to obtain UK immigration status, which enables them to remain here permanently after exit. The proposed new clause is therefore unnecessary, as it conflicts with the purpose and operation of the scheme.

Finally, the proposed new clause makes reference to those resident in the UK on exit day, at the end of this month. As the noble Lord should know, rights under the agreements are conferred on those resident in the UK at the end of the implementation period, which is at the end of this year. The proposed new clause therefore does not align with our obligations under the agreements. I hope that has reassured the noble Lord on the concerns expressed through this new clause and I ask him to withdraw his amendment.

[Lord Greaves]

My Lords, I will certainly withdraw the amendment and I am glad that the Minister discovered the error that I had made when it was too late to correct it. I thank her for that but, as I said, it is not a carefully honed amendment; it is an amendment to declare a principle. The Minister says that it declares the principle behind what the Government are doing. That is clearly not the case. It is the case in many areas, but not in all. As for the settled status scheme, it is certainly the most efficient Home Office scheme that I have come across in recent years—although that does not say very much—because of the effort that has been put into it. I thank her for that. The Minister said, and the Government keep saying, that the rights of European citizens will be broadly as now. It is “broadly” that is a weasel word.

Finally, I did not compare this country to Nazi Germany and obviously I would not do so; that would be ridiculous. What I am saying is that some of the conditions that exist in this country are similar to those that existed in Germany between the wars before the Nazis came to power. You can think that that is right or that it is wrong, but I believe it is the case. Look at the amount of racist abuse there is on social media, while if you listen to pub conversations, you can hear people saying things that perhaps three, four or five years ago they would have kept to themselves. There is an amount of abuse by a small minority of people that is not being stopped by the social controls that previously existed. That, I am afraid, is the position.

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[Lord Cashman (Non-Afl)]

My Lords, I too support these two amendments. Initially, I did not intend to speak but I also served on the EU Justice Sub-Committee. I reinforce the point that was made time and again about the deep concern of those seeking settled status that they would not have physical evidence and that the only evidence would remain in a database. Databases can come under cyberattack and be wiped. I ask the Government seriously to think again on this issue, which I have raised with the Minister before. I hope that the Government will look kindly on and support these two important amendments, which go to the heart of the concerns of the 3 million-plus people wishing to remain here and continue their lives with their families in our country.

[Lord Greaves]

My Lords, I have a couple of questions for the Minister. The November statistics for pre-settled status have been published and show a reduced number of applications after the 31 October deadline that did not happen. The proportion with pre-settled status in November was 47%, compared with the 40% figure overall. Does the Minister have statistics for December or any time after the end of November?

Secondly, what will the Government do if they notify people—by whatever means—that they need to apply for settled status in good time, perhaps a year in advance, to convert their pre-settled status into settled status, but they get no response? Will efforts be made to trace these people? Some of them will be ordinary people who have lived here for not very long at the moment and have to wait, but some—perhaps quite a lot—have been given pre-settled status even though they have lived in this country for perhaps more than five years, because they simply have not been able to provide proof of five years’ continuous residence here. Many of these people might have the kind of jobs that require them to move about a bit or a lifestyle that means moving from house to house quite frequently. They, or at least their current address and whereabouts, can quite easily be lost from the Home Office’s database of those who have pre-settled status. What will happen to chase these people, to find out where they are and to make sure they know their rights?

[Lord McNicol of West Kilbride]

My Lords, the amendments that the noble Lords, Lord Oates and Lord Kerslake, and I have laid before us draw attention to, and look to move to and secure a shift to, a declaratory registration system—away from a constitutive application system to an automatic, declaratory system. These amendments demonstrate that there are different ways of going about this, with different levels of detail. However, the principle that such rights are written into primary rather than secondary legislation is critical.

Amendment 2 proposes that EU citizens should not lose their rights to reside if they are legally resident in the UK at the time of Brexit but have not registered for settled or pre-settled status. Labour has always been clear that citizens should not have been used as bargaining chips in the withdrawal negotiations and that the Government kept the question of citizens’ rights open for too long.

The noble Lord, Lord Hamilton, asked the Minister whether the Government were mistaken to offer pre-settled status before any reciprocity had been dealt with for British citizens living on the continent. I think the Government were right to do so. We are talking about 3.5 million to possibly 3.8 million people who live, work and play among us. Offering those people reassurances, security and, probably most important, the knowledge that our Government want them to stay in the United Kingdom, rather than be treated as pawns in a political negotiation, was absolutely the right thing to do.

--- Later in debate ---

[Lord Greaves]

There was controversy not very long ago about allegations that the settled status database would be shared with outside organisations, perhaps abroad. Is that completely untrue?

[Baroness Williams of Trafford]

The noble Lord outlines the point that I have just made about information being seen by people who are entitled to see it for the purposes for which it should be seen.

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[Baroness Williams of Trafford]

My Lords, the document that the noble Lord refers to is a letter confirming that a person has been successful. Anyone who is successful in obtaining the status could show that letter to a landlord and say, “There. Go and look online to confirm that I have the status”. However, it is not a proof; it is a confirmation. Does that help the noble Lord? I see that it does. Thank goodness.

[Lord Greaves]

Can I ask another question?

[Baroness Williams of Trafford]

No. I am going to continue, and the noble Lord can speak when I have finished if he wishes.

I want to move on to the point that the noble Lord, Lord Oates, made about the criminalisation of people who do not apply by the deadline. That is a very important point—made also, I think, by the noble Lord, Lord McNicol. An EU citizen who fails to apply to the EU settlement scheme before the deadline will not be acting unlawfully in the same way as an illegal entrant or overstayer would be. They will not have knowingly entered the UK in breach of the Immigration Act or overstayed their leave. That is an important point to make. Once free movement has ended, they will need leave to remain in the UK—there is an important distinction there. We set up the EU settlement scheme to provide a quick and easy way to secure that leave, confirming their status in the UK.

We have been very clear that we will take a pragmatic approach, in line with the agreements, to provide those who have reasonable grounds for missing the deadline with a further opportunity to apply. I hope that that helps the noble Lord. He might want to intervene to ask what constitutes reasonable grounds for missing the deadline. We have deliberately not published a list of acceptable grounds for missing the deadline. As the noble Baroness, Lady Ludford, requested, we will send reminders to those with pre-settled status six months before their leave expires so that they can apply for settled status. In the first instance, we want to continue to encourage people to apply. We do not want to provide an exhaustive list as we want to give ourselves the maximum possible flexibility when this situation arises. Examples of people in such a situation might include a child whose parents or guardian failed to apply on their behalf, people in abusive or controlling relationships who are prevented from applying or from obtaining the documents they need, or those who, as I said before, lacked the physical or mental capacity to apply.

The noble Baroness, Lady Ludford, pressed me again on the automatic reminder. I have previously confirmed that there will be an automatic reminder. In fact, in the EU Settlement Scheme: Statement of Intent, published in June 2018—quite some time ago—we committed to reminding people ahead of the expiry of their pre-settled status and it remains our intention to do so. That is not in place yet, as it will not be needed until five years after the first granting of pre-settled status, if that makes sense, so it will be September 2023 at the latest. The noble Baroness is looking puzzled. That is because March 2019 was day one, so it will not be needed for another five years.

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[Baroness Williams of Trafford]

I ask the noble Baroness to understand that perhaps they might not be EU citizens.

[Lord Greaves]

My Lords, I did not get an answer to my question about the numbers. I have checked: there were 2.6 million at the end of November; there are now 2.8 million. Of the extra ones, does the Minister have a breakdown between settled and pre-settled? Should she not have the answer now, it would be helpful if she could let us know.

Secondly, something has occurred to me while listening to all this about documents. If I want to order a railway ticket in advance, I order it on my computer and print it off. Some might not, but I do. People do different things; they take their devices with them and even buy tickets. Regardless, I can print off a railway ticket. If I have settled status and I want to prove it, why can I not bring it up on my computer, take a screen shot and use that? What legal validity would that have?

[Baroness Williams of Trafford]

My Lords, by preference I do my tax online and get an email confirmation. If I book a train ticket, it is on my phone. In fact I rarely take my credit or debit card out any more; everything is on my phone. However, if the noble Lord is honestly suggesting screenshotting your settled-status proof online and then printing it off, I suggest that that might be forgeable.

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[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?

[Baroness Williams of Trafford]

My Lords, I thank noble Lords who have spoken to these amendments. We cannot support them, and I will outline why. The Government will provide for a right of appeal against citizens’ rights immigration decisions. While I commend noble Lords for their commitment to citizens’ rights, these amendments create unnecessary changes to the wording of Clause 11 and, at worst, undermine our ability to provide for a right of appeal in all circumstances and ensure consistency for judicial review, and even create perverse incentives to appeal decisions to gain the benefits of indefinite leave to remain.

Amendments 4 and 9 are unnecessary. EU citizens who are appealing a decision on residence must be able to appeal if refused leave, or given what they believe is an incorrect status under the EU settlement scheme, under our international agreements. It is also damaging, as a power is required to implement the numerous situations requiring appeals.

Amendment 5 is at best unnecessary and, at worst, could prevent the provision for necessary appeals. This Government will provide for a right of appeal against citizens’ rights immigration decisions. This is an essential part of our commitment to protecting the rights of EU citizens, EEA EFTA and Swiss nationals under the withdrawal agreement, the EEA EFTA Separation Agreement and the Swiss citizens’ rights agreement.

On Amendment 6, the current wording of Clause 11(1) allows the Government to make sufficient regulations in relation to appeals against citizens’ rights immigration decisions. It fulfils our commitment in the agreements and provides certainty to EU citizens that they shall have a right to appeals. Moreover, the Delegated Powers and Regulatory Reform Committee has recently commended the powers in the Bill as,

“naturally constrained by the scope of the particular matter contained in the Agreements”.

As such, Amendment 6 is unnecessary.

As for Amendment 7, it is in the public interest to make reviews of exclusion directions made in respect of those protected by our implementation of the withdrawal agreements consistent with how similar reviews are treated now. This power enables us to do this, but Amendment 7 would remove that ability.

Amendment 8 would make it harder for EU citizens to challenge an exclusion direction, would prevent the Government being able to prevent removal unless the appeal is certified and would create a perverse incentive for individuals to launch appeals to gain access to the benefits of indefinite leave to remain.

Amendment 10 seeks to limit the power in Clause 11 in relation to judicial review. It is in the public interest to make reviews of exclusion directions made in respect of those protected by our implementation of the agreements consistent with how similar reviews are treated. This power enables us to do this, but the amendment would remove that ability.

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[Lord Greaves]

My Lords, Clause 15—and Schedule 2, to which it refers—is about setting up a new quango, if I can use that term, created as an independent monitoring agency on citizen’s rights, which is what its title will be. It occurred to me when I was in a hurry that a simple clause stand part debate would give the Government an opportunity to provide more explanation and information on how this new quango will work. Then, when I found myself with a bit of spare time this afternoon, I looked at Schedule 2 in detail and tabled amendments.

Together with the amendments, this clause stand part debate allows the Government to tell us how the IMA will work. I particularly want to probe them on the timetable. How quickly will they set it up? At what stage will the interim chief executive be appointed? At what stage is it expected that the body as a whole will be appointed? If it is to do a useful job it ought to be in place as quickly as possible so that it can monitor the transitional process as it takes place.

As ever, I looked in the Explanatory Notes. There tends to be two different varieties of Explanatory Notes: those that just rewrite the Bill in more understandable words and those that actually explain what is underneath it all. The notes state:

“Paragraph 1 sets out that the IMA is not to be a Crown body.”


Yes, okay. I looked at the Bill, where there is quite a bit more explanation of what that means than in the Explanatory Notes. I will therefore put the notes to one side because they do not tell you anything more than you can get from an intelligent reading of the Bill.

What can the Government say about the timetable? What can they say about the estimated cost? The published impact assessment suggests that the cost of the whole Bill will be about £167.1 million, but it says:

“The bulk of the costs are due to the setup”


of the IMA. What is the bulk? Is it £150 million, for example? How much money will we spend on this? I suppose that we can make assessments of the nature of the organisation from the amount of money.

Nevertheless, how many employees do the Government expect to take on? That is important. What will be the location of the IMA and, indeed, its employees? Will some of them work in different parts of the UK? On the main headquarters, we have heard a lot recently about the new Government wanting to decentralise the Civil Service and send some departments to places such as Doncaster, Grimsby and Workington—perhaps even Nelson and Colne. However, we have heard a lot of this in the past; after the 1960s, none of it ever really came to much. Is it expected that the headquarters will be used as part of the Government’s attempt to decentralise things from Westminster, Whitehall and London?

The amendment about the interim chief executive is important. It concerns paragraph 3 of Schedule 2, which suggests that the interim chief executive will be appointed before the IMA is set up; presumably, they will also take part in that set-up. Paragraph 3(1) states:

“The Secretary of State may appoint a person to be the IMA’s chief executive”.


Paragraph 3(2) states:

“A chief executive appointed by the Secretary of State may incur expenditure and do other things in the name and on behalf of the IMA”


until the IMA is set up. Paragraph 3(3) states:

“In exercising the power in sub-paragraph (2), a chief executive appointed by the Secretary of State must act in accordance with any directions given by the Secretary of State.”


In the brief discussion about the IMA at Second Reading yesterday noble Lords talked quite a lot about whether the IMA will be genuinely independent of the Government. That is my next major question.

In the first instance, my sub-question, as it were, is this: how can the IMA be independent of the Secretary of State if the interim chief executive is appointed by the Secretary of State and has to act, as paragraph 3(3) says,

“in accordance with any directions given by the Secretary of State”?

This seems important, and it would be interesting to hear what the Government have to say.

I have a small amendment to the mention of “gratuities”. It may well be that all government legislation talks about paying people gratuities as well as their salary and expenses, but I have not noticed it before. I looked in the dictionary, and it said what I thought it meant—things you give to waitresses and taxi drivers—but also payments to people when they leave. It seems to me that employees in a government-related agency ought to have a contract that tells them how much they are paid and what their conditions and expenses are, and that we ought not to be looking at lots of golden goodbyes. Perhaps I am unduly concerned about that, but I would like to know what the Government have to say.

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[Lord Wigley (PC)]

My Lords, I believe I am right in saying that Amendment 59 is associated with this group.

[Lord Greaves]

No, it is coming later.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am not immediately aware of the significance of the italics, but no doubt someone will pass me a piece of paper in a moment that explains them—or not, as the case may be.

We have not yet determined the cost—this also responds to a point made by the noble Lord, Lord Greaves—or budget requirements for the IMA. I therefore cannot comment further on that. The obligation to ensure that it is fully and properly funded lies on the Secretary of State and therefore on the UK Government. What further or future negotiation there might be about cost sharing is a matter beyond the terms of the Bill. I would imagine that if we start with an obligation that lies with the Secretary of State and the UK Government it will not easily be transferred in any form to the devolved Administrations. Perhaps one day we will have a reverse Barnett formula, but we do not have one at present.

In the circumstances I have set out I hope it will be appreciated by the noble Lord, Lord McNicol, that Amendments 58 and 60 are not required in this context. The approach that we take to exercising the powers with regard to the IMA will be proportionate and appropriate and it would therefore not be necessary or appropriate that the procedures in the Public Bodies Act 2011 should apply. The bodies to which that procedure usually applies are those established on the basis of domestic policy. It will be appreciated that this is a rather different body which is the product of an international agreement and therefore it has to comply with the obligations we have entered into at the level of international law and it should not be tied to domestic legislation.

On the noble Baroness’s observations about the italics that appear in the Bill, it may well be that she alighted upon an issue that may arise later in the day, but I am advised very clearly that it is a misprint. Apparently, the entire Bill should have been in italics.

I have sought to reassure noble Lords about the concerns that have been raised and which have motivated these amendments. We have sought to design the IMA to provide robust, effective and fully independent oversight of citizens’ rights and our commitment to citizens’ rights. It is necessary to bear in mind that we are implementing international law obligations that we have incurred by entering into the withdrawal agreement. The clause and the schedule in their present form meet those international obligations and the demand for robust, effective and fully independent oversight of citizens’ rights and obligations. I hope that noble Lords will not press their amendments.

[Lord Greaves]

My Lords, I am very grateful to the Minister for the time and effort he has taken to go through all the points raised and, I think, to give us a certain amount of new information or extra information about how the IMA will work and about the Government’s thinking on it. This debate has been valuable. I am grateful to everybody who has taken part, and particularly for the snapshot we have had of the devolutionary thinking among Welsh Members of the House. I found it very interesting and useful.

The only question the Minister did not answer was about whether the IMA is going to be based in the north of England. Perhaps that is beyond his pay grade —I think he agrees with that.

Clause 15 agreed.

European Union (Withdrawal Agreement) Bill

Lord Greaves Excerpts

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

Moved by

[Lord Greaves]

48: Schedule 2, page 47, line 12, at end insert—
“(d) a member who knows about conditions in England relating to the relevant matters.”Member’s explanatory statement
This amendment adds England alongside the other constituent parts of the United Kingdom.

[Lord Greaves (LD)]

My Lords, I find myself having to move the last amendment slightly by accident. I will also speak to the other three amendments in the group. I apologise to the Committee: I had intended to group them with a much earlier group that was debated yesterday morning. Unfortunately, the way in which the Bill has been concertinaed caught me napping and I have ended up having to do this at the last gasp.

Since it is the last gasp, I want to say one thing. I am a little concerned. I have listened to a lot of the debate both in the Chamber and outside it, and I am reading the rest of it. I feel that this has not been a normal Committee in the House of Lords. That is not just because it has been concertinaed into three days; we understand why that is so. It is the first time, I think, that I have not heard or read debate on a single amendment when the Government Front Bench have said, “Yes, there are interesting points to consider here. We’ll take them away and consider them and perhaps have some meetings outside the Chamber before Report.” Again, the concertinaed timetable makes that difficult but that is the way the House of Lords normally works. This is a special and unusual Bill and we are in unusual times, but it is an indication of the way Brexit has divided not only the country—almost down the middle—but this House and every institution in the country. I believe that there is a fundamental lack of trust here.

Perhaps I am being presumptuous, but I will have been here for 20 years come May, so I have a right to be slightly so. I say this to the Government Front Bench: at times, I have seen the House of Lords descend into a certain amount of chaos, but most of the time it does a very good job of scrutinising and revising Bills. We now have a majority Government in the Commons. I have been here when there have been big majority Governments. There have been periods of Labour government during which we in the Liberal Democrats worked closely with the Conservatives, as the two opposition parties, and sent things back to the Commons time and again.

We have also negotiated with the Government; indeed, there were Lords Ministers in a majority Government during the 2000s who took it upon themselves to go back to the Commons and the Government to try to get a deal. The noble Lord, Lord Whitty, who was here earlier, was excellent at that. On a number of occasions, he got deals on agriculture Bills and then came back here and satisfied—or at least half-satisfied—the Liberal and Conservative groups. I hope we will move back to that sort of thing once we get over the traumas of Brexit.

I sense a feeling on the Government’s side that everybody who is against Brexit—who voted to remain and tried to stop Brexit—is trying to stop the exit day on 31 January and to put off the final reckoning at the end of the year until some time in the far future. I can speak only for myself—I cannot speak for my group, and my Chief Whip is here so I had better be careful what I say—but I believe that there certainly is consensus in our group. We accept that the UK will leave the EU on 31 January. That decision has been made. That is why we are more than happy to co-operate in getting this Bill through in time.

I believe that, now the decision has been made, to quote whoever it was:

“If it were done when ‘tis done, then ‘twere well


It were done quickly”.

The quicker it can now happen—and everything can be sorted out in the meantime—the better. Then there is certainty and we can all move forward into the future. If some of us want to start long-terms campaigns to go back in, we can do that; but let us have the certainty of the end of this year, if at all possible. Many of us are very doubtful that the Government can do all the necessary negotiating by this summer but, if they can, good luck. They will need the help and assistance of opposition parties in Parliament—including in the Commons, where there is a huge majority—to achieve that. I believe that is what should happen. I do not know if that is the view of my group generally, but it is what I believe.

I have four little amendments, on which I will try to be quick because everybody who is still here wants to go for the trains. Amendment 48 comes back to the relationship with the devolved authorities and other “relevant” authorities, as it says here. We are back to the composition of the independent monitoring authority. Three of the members—or perhaps four, if Gibraltar is included—will have to know about “conditions” in Scotland, Wales, Northern Ireland and perhaps Gibraltar. It is a strange phrase, “knows about conditions in”. That leaves the rest of the UK appointees, who are supposed to know about conditions everywhere.

The appointments of the specific people who will, in a sense, have a duty to represent what is going on in Scotland, Wales and Northern Ireland—and perhaps Gibraltar—are subject to consultation with the relevant authorities in those areas. But if the authorities say they do not like the person put forward, the Government can go ahead anyway and appoint the person; all they have to do is write a few words as to why they have done it. That is a tiny thing, in a sense, but it seems to strike at the heart of the relationship between Whitehall and Westminster and the devolved authorities. I think it is wrong, and this amendment and another say that they have to come to agreement, in effect. It is not difficult to negotiate and come to an agreement in those circumstances.

The other amendments, which are slightly wild, add England to this. The present devolutionary settlement in this country—I am talking particularly about England and Scotland here—is not stable and, I believe, not sustainable for the future. This is just one little example of that. People will be there as UK persons but also representing England. It is not clear whether the people with special knowledge of Scotland and so on will have anything to do with England, but it is an asymmetrical relationship and is falling apart in all sorts of ways. Every time there is a little example of something falling apart, it just stokes up the pressure for Scottish independence.

In my view, Scottish independence as such, just brought about by a referendum, would be pretty disastrous for this island. We must sort out the relationship between Scotland and England. I say “we”, because at the moment it is assumed that the future of Scotland is all to do with people in Scotland. I do not think it is; it is to do with people in Scotland and England, because it is a question of the relationship between us.

Finally, if Scotland and Wales have representatives or people who know about the conditions there, why does not the north of England? These issues of devolution within England are going to come to the fore. I know this is far and away beyond the purview of this Bill and these amendments, but such issues will underline a huge amount that happens in this Parliament and a huge amount of the politics out there during this Parliament. If this constitutional convention can start to get to grips with those things—starting from scratch; not from “Will Scotland be independent or not?” but from “What relationship do we really want in future between Scotland and England?”—then Wales and Northern Ireland can follow along. Having said that—I am totally out of order talking about this under this group of amendments—I beg to move Amendment 48.

[Lord McNicol of West Kilbride]

My Lords, I responded to an amendment in the name of the noble Lord, Lord Greaves, on day 1 of Committee, so it seems we have come full circle. I offer a brief response to these further amendments regarding the independent monitoring authority. I understand that these are probing amendments, and I am keen to hear the Minister’s response, so I will not detain the Committee after three consecutive days of debate on this Bill, which I hope will not be a trend in future when debating Bills off the back of Brexit.

I am particularly interested in Amendments 49 and 50, which would prevent the Secretary of State from appointing a person to the IMA against the wishes of the relevant body. This suggestion strikes me as entirely sensible. Given previous ministerial assurances on the issues of devolution, I would be very interested to hear from the Minister in what circumstances the Government would seek to force through an appointment that had been opposed by a devolved Minister. If that were to happen, the current sub-paragraph (7) requires the Secretary of State to make a statement outlining the reasons for proceeding with that appointment. Can the Minister confirm what form this statement would take, and what opportunities, if any, the relevant devolved legislatures would have to hold the Secretary of State to account?

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[Lord Greaves]

I am grateful. I thank the Minister for his reply and his usual diligence. My mischievous gene says that I should now call a Division but I do not think that would make me popular with anyone and it is not necessary. I beg leave to withdraw Amendment 48 and, in so doing, wish everyone a relaxing weekend before we start again on Monday.

Amendment 48 withdrawn.