European Union (Withdrawal Agreement) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Hamilton of Epsom (Con)]

My Lords, the Government have done an amazing amount to look after EU citizens in this country. I cast my mind back to the early days of the May Government when there was great pressure to unilaterally make steps to ensure the position of EU citizens living in this country. At that stage, the Government resisted the pressure because they said that this should be part of the negotiations. It should be reciprocated by the EU: it should do the same for our citizens in the EU. As far as I can make out, that has not happened. We have made a generous, unilateral gesture towards EU citizens in this country and there has not been reciprocation from the EU. Does that not mean that the Government have been rather mistaken to make this generous offer? Surely we have an obligation to our citizens in the EU and we should look to it to reciprocate anything that we do in this country. Will my noble friend address this problem when she sums up? As I understand it, British citizens in the EU do not, at the moment, have any freedom of movement between one EU country and another and there are certain problems with EU citizens in this country travelling to and from their country of origin in Europe. This has not been a very satisfactory outcome in the negotiations. Perhaps we would have been better not to have made this extremely generous, unilateral offer.

[Lord Warner (CB)]

My Lords, I support these two amendments. I do so as the roommate of my noble friend Lord Kerslake, who sends his apologies for not being here but has strengthened my arguments for supporting the amendments. I speak as someone who, after the 1997 election—oh glorious days—spent two years in the Home Office and saw every submission of any significance that was made to the then Home Secretary. I always shuddered a little when we got submissions from the immigration part of the department. They sent a quiver through my soul, because of reliability. I remember a former Conservative Home Secretary briefed us shortly after that election. He said to the then Home Secretary: “You have to remember that there are always 500 people in the Home Office who can ruin your political career. The really scary thing is that none of them actually realises that they can do it.” The Windrush exercise demonstrated rather well the wisdom of those remarks.

The important thing about these two amendments is that they do not in any way disturb significantly what the Government want to do. They provide legal certainty, about which I think we will hear more later in Committee. They also provide some very practical stiffening of the arrangements around these new Immigration Rules. I went to one of the Home Office briefings for parliamentarians on the new scheme, at which everybody, MPs, Peers and members of MPs’ offices, made the point to the Home Office that in the real world a lot of people expect someone to produce hard-copy evidence, whether it is the landlord, the GP or whoever. I can speak from personal experience, having helped a number of people get permanent leave to remain here, and not that long ago either. These people had had experiences of having to produce some written documentation that they were entitled to live here.

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[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.

[Lord Hamilton of Epsom]

Is the noble Lord saying that we have no responsibility for British citizens in the EU and that their position is something we just leave to the whims of individual countries in the EU? The noble Viscount, Lord Waverley, said that he regarded what he was benefiting from in Portugal as complete equivalence—but he is not allowed to move from one country to another within the EU, so you could say that British citizens in the EU have been seriously disadvantaged by not having a balanced agreement giving settled status to people on both sides of the English Channel.

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[Baroness Williams of Trafford]

The noble Baroness is absolutely right. I think that my last statement was wrong, but I shall confirm that to her in writing.

The noble Baroness talked about people struggling, and I think that I have outlined some of the ways in which we are trying to help people to make their application. She will have heard me say previously how we have put money into various centres around the country to help people.

The noble Baroness also asked whether we are still granting permanent residence. Yes, we are.

On the question of why settled status is better than permanent residence, you do not have to be exercising treaty rights to get settled status; there is a more generous right of return—so five years rather than two years permitted absence—and there is an automatic entitlement, as a UK national, to benefits for those with settled status. However, that does not stop people from applying for permanent residence, and they do.

Finally, my noble friend Lord Hamilton of Epsom and the noble Viscount, Lord Waverley, talked about UK nationals in the EU. I recall the discussion that we had about unilaterally guaranteeing the rights of EU citizens, but they asked about UK nationals in the EU. The withdrawal agreement that we have reached with the EU provides reciprocal protections and certainty on citizens’ rights. The agreement applies equally to EU citizens here and UK nationals in the EU, in their member state of residence, by the end of the implementation period. Ministers and officials have already engaged extensively with UK nationals across the EU and will continue to do so. I am very pleased to hear about the good experiences of the noble Viscount, Lord Waverley, in Portugal.

[Lord Hamilton of Epsom]

I am grateful to my noble friend for giving way. Does she agree with the noble Lord, Lord Cashman, however, that the EU will treat British citizens in the EU as foreigners who are unable to travel from one EU country to another? Surely, if we had balanced these negotiations, we might have been able to wring that concession out of the EU so that our citizens living there could travel from one country to another.

[Baroness Williams of Trafford]

I agree with my noble friend; of course, that will be a matter for future negotiations. In the meantime, I ask the noble Lord to withdraw his amendment.

European Union (Withdrawal Agreement) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Wallace of Tankerness (LD)]

My Lords, I bring a Scottish voice in support of the arguments that have been advanced in the amendments from the noble and learned Lord, Lord Thomas of Cwmgiedd, and by other noble Lords who have spoken. These are important points, not only as the noble Lord, Lord Murphy, has just said, for maintenance of the union but also for many practical reasons. As the noble Baroness, Lady Finlay, said, no one disputes that the negotiation of an international treaty is a matter devolved to the United Kingdom Government. However, we have to recognise that much of the subject matter of many of these agreements will fall to the devolved Administrations to implement; it will be in areas of devolved competence. Therefore, it is important that there be proper engagement with the devolved Administrations in reaching these agreements, not only to ensure a community of interest within these islands but to give those with whom we are negotiating some reassurance that what they are negotiating will be implemented properly by the various devolved Administrations. If the people from the devolved Administrations are not present, something may be missing in the reassurances they are seeking.

In paragraph 114 of the report published yesterday by the Constitution Committee—of which I am a member—the committee reiterated what it said in its report last year on the parliamentary scrutiny of treaties:

“As part of its treaty-making after the UK leaves the European Union, the UK Government must engage effectively with the devolved institutions on treaties that involve areas of devolved competence … The UK Government will need to consult the devolved governments about their interests when opening negotiations, not just to respect the competences of those governments but also in acknowledgement of the important role devolved administrations may play in the implementation of new international obligations”.


In paragraph 115, the Constitution Committee recommends that

“the Government set out before the Bill’s report stage what its process for consultation and engagement with Parliament and with the devolved authorities will be in respect of the future relationship negotiations with the European Union”.

Amendment 29 goes further than that and wants to put it in the Bill; that is probably worth while.

Some noble Lords will recall that, when the Joint Ministerial Committee on EU Negotiations was established—I think, in the autumn of 2016—great commitments were made about the intention of the United Kingdom Government to engage at every step of the way in the negotiations to get a withdrawal agreement. Yet we know that, for many months, that Joint Ministerial Committee never even met. This is not the place to go into why it did not meet, but good intentions were not delivered on. We know that there were good intentions. In replying to the debate on the gracious Speech last Wednesday, the noble Baroness, Lady Williams of Trafford, said the following in response to a similar point that I and the noble Lord, Lord Kerr of Kinlochard, made then:

“the noble Lord, Lord Kerr, and the noble and learned Lord, Lord Wallace of Tankerness, asked about the representation of the devolved Administrations in negotiations on our future relationship. We recognise the need for their close involvement in negotiations on our future relationship with the EU in order to deliver a satisfactory outcome”.—[Official Report, 8/1/20; col. 289.]

That was a statement of intent with which I could have no dispute, but we want more: we want how it will work in practice to be fleshed out. Given that the Joint Committee on EU Negotiations has not had a happy track record—it improved as time went on—many of us would feel more reassured if it was on the face of the Bill.

[Lord Hamilton of Epsom (Con)]

Is it not difficult to legislate for a committee to meet more often when it does not meet often enough?

[Lord Wallace of Tankerness]

My Lords, the amendment would establish that it should meet, and some timescales are set down. My concern relates to good intentions. No one disputes the good intentions for the Joint Ministerial Committee on EU Negotiations when established, but they were not carried through in practice. When the Minister comes to reply—I am not sure which Minister it will be—I am sure that we will be told of good intentions. We want to ensure that good intentions are delivered on.

European Union (Withdrawal Agreement) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Wallace of Saltaire (LD)]

My Lords, my name is also on Amendments 27 and 28, and I wish to add my support for them. The Constitution Committee’s report, published two days ago, says in paragraph 3:

“This Bill is of the highest constitutional significance.”


One of the many aspects of that constitutional significance is as it affects the relationship between Parliament and government. As I understand it, the role of Parliament and the role of the second Chamber of Parliament—the House of Lords—in legislation is that we should present reasoned arguments and criticisms of what the Government have put forward. In response, the Government’s duty is to listen to those arguments. Where they are persuaded that those arguments are reasoned, or where they are unable to provide reasonable answers to them, they should adjust the legislation to meet those arguments.

The other dimension is that, as policy proceeds, the Government should be held to account by Parliament; there should be ongoing accountability as policy proceeds. Amendment 27 does not say that we want to know the details of everything; it talks about objectives. The Government are asked to tell us regularly what their objectives are. That seems entirely reasonable, particularly as the Government’s objectives remain so unclear and, in some ways, contradictory. On regulatory divergence, for example, I have listened to the noble Lord several times explaining the rationale for the regulatory divergence the Government are committed to and each time he explains it I become less and less convinced that the Government know what they want. I think that is partly because different elements of the Government and of the Conservative Party want entirely contradictory outcomes.

The question of the future security relationship also contains a number of unresolved internal differences. On future trade relations, we heard on the radio this morning someone with very close links to the Trump Administration saying that if we want good trade concessions in our future relations with the United States, we had better give something in return on Iran and our policy on the Middle East. There are many questions there that it is reasonable for Parliament to hold the Government to account over, and to ask Ministers to continue to justify.

The noble Baroness, Lady Noakes, in what I thought was rather an odd speech, said that we should not bother Ministers when they are in the middle of negotiations, because they will be tired and busy and we would get in the way. That seems to me, if I may say so in her absence, absurd. Parliaments are there to hold Governments to account and if the Government think they can get away without being held to account, except every five years in elections, we have moved away from constitutional and parliamentary democracy.

We heard a number of empty threats on Monday about the future of the Lords if we were to pass any amendments. There were suggestions that we were standing in the way of the people’s will and that various Members of this House perhaps represent the people against Parliament—although some of the Members of this House who put themselves forward as representing the people seem rather less popular in their backgrounds than one might otherwise expect. All I say to that is that if one faces up to the question of Lords reform—I say this as a former Minister responsible for trying to take through Lords reform—it is very difficult.

Some of us were at a meeting this morning where it was said that Lords reform and electoral reform were the two most difficult constitutional changes that anyone would wish to take through. It was implied that neither would happen in our lifetimes. That may be a bit of an exaggeration, but there is an idea that somehow, with the Express and the Mail behind the Government, threats can be made that the Lords will be abolished—and with Rebecca Long Bailey behind the Express and the Mail in threatening it. The idea that that will happen and we will all then turn quiet is out of the question. We have to do our job. We are here as a revising Chamber and it is our duty to ask the Government to revise when we are not convinced.

There is a question that all Conservatives here should ask themselves carefully as they consider how the House considers the Bill: if a non-Conservative Government were attempting to push through a Bill of this sort, which diminishes the role of Parliament in holding the Government to account, what would the Conservative response be? I think I know. I therefore strongly support this amendment and I hope the Government will recognise that, in rejecting it, they are trying to push the relationship between Parliament and Government towards the Executive and away from proper constitutional democracy.

[Lord Hamilton of Epsom (Con)]

My Lords, to respond to the noble Lord, Lord Wallace of Saltaire, on Lords reform, I remind him that your Lordships’ House was not saved by anybody in this House. It was actually saved by Jesse Norman—who paid a serious price from David Cameron, who subsequently refused to put him into his Government—and a number of right-wingers in the Tory party. We do not have that support in the Commons any longer, so I would not be quite so laid back and complacent about the future of your Lordships’ House. It has been seriously threatened and bruises have been left.

As to the amendment, I think we have all very much welcomed the election of Sir Lindsay Hoyle as Speaker of the House of Commons. I think he will be an umpire rather than a protagonist in the Brexit debate; he certainly has not indicated which way he voted in the referendum. However, the suggestion that he will not allow any Statements or Urgent Questions on the Brexit negotiations in the year that extends before us is for the birds. The idea that the Government will have no accountability to the House of Commons—or to your Lordships’ House—on how the negotiations are progressing is just ridiculous. For that reason, it is completely unnecessary to have this stuff in the Bill; I think there will be a lot of accountability, which will be ensured by the new Speaker. There is no point whatever in putting it in the Bill.

[Lord Wallace of Saltaire]

My Lords, I assure the noble Lord that I am strongly in favour of reforming the House of Lords. I hoped when I was appointed to this House that I would in due course become an elected member for the Yorkshire region. I have now been in this House for 23 years and that has not happened. I am very conscious of the difficulties of reform.

[Lord Hamilton of Epsom]

Yes, and the noble Lord should be very pleased with himself that he has done much to make the idea of reforming our House a significant factor, now that there is a Conservative Government with a serious majority.

[Lord Hannay of Chiswick (CB)]

My Lords, as one of those who sponsored this amendment, I will make a few brief points. Its subject matter is very familiar to Members of this House, because we went over all this ground during the Trade Bill last year. We sent to the Commons an amendment that had very similar effects to this one, only this one is in the different context of negotiating the new relationship with the EU, and it has remained there untreated ever since. However, the view of the House was expressed by a very large majority, with support from all corners of the Chamber.

This negotiation with the EU, which will go far beyond purely the trade area, must do so because, if we allow the non-trading goods areas that are at stake—I will not list them, as it is a very long list—to go over a cliff at the end of this year, when we have only a trade agreement, that would be pretty disastrous. It is a very important and wide negotiation, and it is perfectly reasonable to try to set bounds to the rules of the road in legislation about how the Government will relate to both Houses of Parliament during its course. I do not think there is anything unreasonable in this.

Moreover, as my noble friend Lord Kinnoull pointed out, drawing attention to the European Parliament’s position, which is completely different, it would be pretty anomalous if this Parliament, which is meant to be taking back power, had much less influence over this negotiation than the European Parliament. That is not a very happy situation; it was one that existed during all the negotiations of the last few years and did not turn out terribly well. I do not quite understand why the Government are fearful of subjecting themselves to this fairly reasonable amount of oversight and mandating when they have a very large majority in the other place, which will of course prevail in support of the Government’s views on how the negotiations should be conducted.

Yet they tabled the text that we now have before us when they could not be sure of that at all. That is a bit odd as well; I think I can understand perfectly well why it has happened, but it is still odd. This is not only about the European Parliament. For example, one of the major trade negotiations not covered by the Bill will be with the United States, where Congress will play a far greater role than the one that the Government envisage for this Parliament. That is also pretty unhealthy.

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[Lord Bowness (Con)]

My Lords, I support the amendment. I would adopt many of the arguments put forward by my co-sponsors, and I shall not repeat them. I put my name to it because I believe, perhaps naively, that it ought to be self-evident that Parliament should have a particular and special role in holding the Government to account during the vital negotiations that will determine the United Kingdom’s future relationship with the European Union. The pledge to establish a free trade agreement tells us little or nothing about this. I raised a number of questions at Second Reading, which I will not repeat because I got no answers to them then, and I would not anticipate an answer this afternoon.

I emphasise that the amendment does not attempt to delay or stop Brexit; it would not even delay the passing of the Bill in time for 31 January. As for my noble friend’s reliance on Select Committees, Questions and debates, I submit that those are no substitute for a formal recognition of the special circumstances of the negotiations we are about to enter.

The parliaments of Denmark and Sweden, to name but two—

[Lord Hamilton of Epsom]

Surely all that can possibly happen in the House of Commons is that the Government make Statements on their position in the negotiations with the EU. That will happen anyway, if the Speaker allows it. How would putting it into the Bill make the slightest difference?

[Lord Bowness]

It would impose an obligation. I bow to my noble friend’s knowledge of the workings of the House of Commons, but it seems to me that there is probably a very compliant majority at present, so we need safeguards in the legislation.

[Lord Hamilton of Epsom]

The majority in the House of Commons only counts if there is a vote. There are no votes on Statements.

[Lord Bowness]

That still does not seem to me to obviate the need for full information to be given to both Houses of Parliament. I suspect that my noble friend is implicitly accusing me of trying to delay the Bill or to stop Brexit, rather than being concerned about the future of our relationship. I refute that allegation, but I entirely accept that I remain very concerned about our future position.

I apologise for hesitating slightly here, but my noble friend has rather thrown me—which was, no doubt, his intention. I appeal to my noble friends on the Front Bench to recognise that we all accept that we are leaving, but that some of us want to ensure that we retain as many as possible of the benefits of 40 years, and that they are not all lost just to satisfy the ideology of a clean and absolute Brexit. Those of us who think that way may be in a minority, but we are a substantial minority.

I apologise to my co-signatories to this amendment for my following comments. They are not intended to undermine the amendment or the arguments that they have put forward but I accept that the amendment was drafted at a different time, in different circumstances, and is very long. Arguing from my position, I ask the Government—it may be a vain hope—to give serious consideration to discussing whether there may be a simplified formula in the Bill which people such as I—and they—might find it possible to accept. It would be a gesture of good will to those of us who are not ideological Brexiteers. At the moment that good will is in pretty short supply and I hope that we might see it. I certainly hope that it will break out during the negotiation period.

It may be a vain hope but it is a serious suggestion that we endeavour to find a clause which would be acceptable to those of us with differing points of view across this House.

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[Lord Wilson of Dinton (CB)]

My Lords, I am pleased to follow my noble friend Lord Kerr.

This is all about power. The Government are in powerful position at the moment. I say “at the moment”, because it will not last. We know that the pendulum swings, and that power is fluid and leaks away. The arguments for the amendment are good, but I am more concerned about good government. My experience is that Governments, when they are at their most powerful, are in a kind of vacuum, and this is a time when mistakes are made. This is the year when the Government will plant the seeds of their own failure, and I am in awe of their task over the next year.

I date back from the time when we did trade negotiations ourselves. I was a gofer in the Board of Trade on the Kennedy Round. I was in charge of knitting needles, aspirin and canned fruit at various times. I was also Private Secretary to the then Minister for Trade, the late Lord Brown of Machrihanish. I am familiar with trade negotiations from that earlier period, and I can confirm that the noble Lord, Lord Liddle, is right: trade negotiations do not bring out the nice side of other people; they bring out the tough, rigorous side.

Although the Government are powerful in this House, and in politics, they are not necessarily going to be strong in the negotiating room. They need the support of Parliament, and they need friends. They will have more friends if they consult and if they are open, because the analysis needed for trade negotiations —on services and the other areas that are so important to this country—will involve groups of people, Scotland and Wales, and sectors. The Government need to be open and use their power with maturity. They need experience, they need to be open, they need to recruit friends and heal. The trouble is that the bruises are too recent, which colours some of these exchanges.

The Government must work with Parliament, with noble Lords, and be open to understanding the hugely different currents and flows that will underlie these negotiations. If they think they know all the answers and can ignore the sovereignty of the Queen in Parliament, and just be the Crown, they will make some awful mistakes and the country will suffer for them. I urge the Minister to take these amendments, and the arguments that lie behind them, seriously.

[Lord Hamilton of Epsom]

Is the noble Lord arguing that there will be no reporting by the Government to Parliament on the negotiations if this is not in the Bill?

[Lord Wilson of Dinton]

I am not arguing that. I am worried that the Government’s powerful position, and their glee and joy, which is understandable, will lead them to a certain arrogance and to ignore the role which Parliament can properly play. These amendments are a good reminder of the role that Parliament must play. I urge the Government to work with Parliament, with noble Lords and with influences that can be brought to bear behind the scenes, to listen and not to think that they know all the answers and can just go in and negotiate, because they cannot.

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[Baroness Hayter of Kentish Town]

My Lords, there are two parts to what we have been talking about. One is about the mandate and the other is about oversight of the ongoing negotiations. As I think has just been clarified, the EU Commission negotiators seem to manage very well by being given a mandate from elsewhere —that is, from the Council—and reporting back there, so it really should not be difficult. The Minister seemed to be quoting the Treaty on the Functioning of the European Union by saying that the European Parliament did not have the powers that other noble Lords have suggested. I think he will find that there is an institutional agreement going rather further, and that is what gives it the grip.

During the discussion on the mandate, my noble friend Lord Tunnicliffe, who of course is an old hand at negotiating, said that his definition of the mandate that he used to work with was “Whether I’d get away with it”. It sounds as though our Government are trying to do that, which is rather the problem. Given that the Government have a majority of 80 in the other place, I really do not see what they are afraid of by our requiring that they should put the mandate, and report on the negotiations, to a House where they obviously control the numbers. They cannot be that afraid of your Lordships’ House, so it is slightly hard to imagine why they are so resistant to this.

The noble Lord, Lord Hamilton of Epsom, championed the existence of Statements. Those work quite well for someone like me on the Front Bench, because I get my fixed and protected time to question a Minister when they come with a Statement. But if there are only 10 or 20 minutes, or even 40 minutes, on a Statement for Back-Benchers when this House has a plethora of real experts and we are talking about something as detailed as negotiations, our Statements at the moment do not really provide the sort of scrutiny that your Lordships would expect on such a vital matter.

[Lord Hamilton of Epsom]

Does the noble Baroness not accept that the Opposition has Opposition day debates as well, which can spell this all out at much greater length?

[Baroness Hayter of Kentish Town]

I do, absolutely, but I was referring particularly to experts. I will try not to offend my colleagues now, but many of those experts do not sit on my Benches yet are absolutely in that part of the House that we so value. We have great experts from not just international negotiations but industry and trade. They do not just sit in the Opposition and do not have the grip to be able to take a debate like that. Even if what the noble Lord, Lord Hamilton, suggests were written into the Bill, there would be a day’s debate every month or two, or that sort of thing. We think it important to have more than just a Statement without a vote, particularly in the other place.

The grip is needed to make sure that this happens. Until my noble friend Lord Liddle said so, I had not realised that not every Secretary of State was as good at turning up—although I remember an occasion when one Secretary of State did not turn up twice, having been expected by the EU Committee. Again, offers of good will are perhaps not quite sufficient.

What is important in this came in the example about America—I think it was from the noble Lord, Lord Kerr—but also from the right reverend Prelate the Bishop of Leeds. Parliamentary approval actually strengthens, not diminishes, the Government’s stance; that is worth listening to. The taking back of control was meant to be by Parliament, not just by the Government, but we are surely at our strongest where the two work together. The noble Lord, Lord Wilson of Dinton, said two things. One was that when the Government are strong, they can make mistakes; he also urged the Government to work with Parliament, not set themselves against Parliament.

The noble Lord, Lord Bowness, suggested that a simplified version of what we tabled might be more acceptable to the Government. I urge the Government not to turn their back on that. The Minister will have heard, with only a couple of exceptions, the real feeling that we will do our job best if we can do it in a way that is written into the Bill. We will then be confident that the negotiations will be able to fully engage this House and, more importantly perhaps, the other House as this vital matter continues. I have a feeling that we will return to this on Monday or Tuesday but, for the moment, I beg leave to withdraw the amendment.

European Union (Withdrawal Agreement) Bill

Lord Hamilton of Epsom Excerpts

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

[Lord Hamilton of Epsom (Con)]

My Lords, the noble Baroness, Lady Finlay, put her finger on the nub of all this when she talked about trade-offs. Any agreement that we reach with the EU will be a series of compromises. If we have individual delegated bodies taking hard stands on one position or another, or indeed one industry doing that, we are never going to get the compromises that we need to get our deal through. That is why the noble Lord, Lord Howarth, is right: we cannot bind the Government’s hands on this issue. The noble Baroness, Lady Randerson, acknowledges that the union is very important to this Government; indeed, it is to all of us in this House, I think. Are we really going to sacrifice the union by reaching arbitrary decisions that discriminate against one part of the union or another? No, of course we are not, but we need to make compromises and the Government should not have their hands tied by individual bodies or regions of this country taking a hard line on one position or another.

[Lord Wigley (PC)]

My Lords, I have my name to this amendment, but I rise with some trepidation. I will try not to have a flight of nationalist fantasy, as the noble Baroness, Lady Randerson, put it a moment ago. I hesitate to bring a discordant note. We hear a lot about the strengthening of the union. We must ask ourselves exactly what we mean by that. If it is to make the union work more effectively and harmoniously, be more sensitive to the needs outside Westminster and Whitehall and have greater empathy, of course that is highly desirable. However, I wonder if that is the case. If it is to strengthen the grip of Westminster and Whitehall and impose policies that are not in the best interests of Wales, Scotland and Northern Ireland, that clearly will cause a lot of bitterness. The mechanisms that we are talking about here are to avoid that sort of bitterness arising.

I would have thought that it was patently in the interest of those who want to hold the United Kingdom together in its present form that at least some movement is made to ensure that clashes do not arise from differences of aspiration or even a misunderstanding between the Governments of the various nations of these islands. We need Westminster to be sensitive when there are universally accepted reports on changes in the relationship, such as in Wales in relation to the legal systems. The noble and learned Lord, Lord Thomas, brought up an excellent report, the Silk report, which suggested changes for the police and prisons. When those are universally accepted in Wales and totally ignored year after year here, it is hardly surprising that there is some feeling that the system from the centre fails to work in the interests of every area.

It is very relevant that this issue arises in the context of European legislation. Noble Lords will remember that in 1979, very shortly after we joined the European Union, there was a referendum in Wales in which the vote went 4:1 against having a devolved Government. The noble and learned Lord, Lord Morris, was very much involved in that. Several factors led to the changes between 1979 and 1997 when there was a very small majority, but still a majority, in favour of establishing a national assembly. One of the factors was the advent and development of the European dimension. With this came acceptance of a multilayered system of democracy and that the principle of subsidiarity that runs through the European vision was relevant within these islands. Some things within the strictures that we have are appropriate to be discussed and decided at Westminster, some—until the end of next week—on a European level and some that are more appropriate on a Welsh, Scottish or Northern Irish basis.

It seems there is a possibility now of turning the clock back from the vision that had developed over the last 40 years to what existed before 1979. If that is the case, that is the most likely thing that will drive a change, forced from the periphery, in the structures of these islands. It is the sort of change that many noble Lords have mentioned and are fearful about.

In the context of this specific amendment, all that is being asked for is a provision for a systematic approach that takes into account the needs of the devolved nations. That is not an unreasonable thing to look for. The fact that Northern Ireland yesterday, Scotland before, and probably Wales this afternoon will refuse the orders that are being requested in the context of this Bill is surely an indication that something has been got wrong from the centre.

I urge the Government to look at this amendment in that context and to see it as an opportunity to build a better, more harmonious relationship, rather than just stamp on it and hope that the feelings in Wales, Scotland and Northern Ireland will just go away.

--- Later in debate ---

[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

Lord Hamilton of Epsom Excerpts

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

[Lord Dubs (Lab)]

My Lords, I am grateful to the Minister for at least having stated, again, the Government’s position, but I still do not understand it. The noble Lord, Lord Kerr, explains why it was difficult to follow. For all the time we spent on it, it is not clear to me or many noble Lords, including on the Government Benches, why the Government are doing what they are doing. Part of the Minister’s speech could have ended up with her saying yes, and that she supported the amendment—part of it led to that conclusion. Somehow, she changed course and said no. She talked about an unnecessary statutory obligation. By that, I believe she means the provision in the 2018 Act—an obligation accepted by the Government in the Commons after we passed it in this House. I do not know why it was okay then but unnecessary today; that has not been explained.

Above all, it seems to me that there is a very clear proposition on family reunion: unaccompanied child refugees should be able to join family members here. All we ask is for the Government to take that and negotiate on that basis with the EU. We cannot predict the outcome; it could not be more modest. All we are saying is, “Please do it”. But the converse, by the Government saying, “We are not going to do it”, sends a very difficult signal. Some people have called the Government mean and nasty. If the Government want to disprove that accusation, surely they should accept this amendment. It is very simple: we do that and then we are in line with what we decided in 2016.

[Lord Hamilton of Epsom (Con)]

Does the Government’s track record on admitting child refugees completely rule out the idea that they have been mean and nasty?

[Lord Dubs]

I do not think so, partly because the majority of the 41,000 children that the Minister referred to came to this country by illegal means because there were no legal means for them. We estimate that about 90% of them came on the back of lorries, in dinghies and so on. Surely that is the very thing we wish to discourage, so I am not convinced by that. I welcome what the Government have done for refugees of course, but we are talking about what we will do in the future. I regret that the signal the Government are sending by this is a very negative one. It is not a humanitarian signal and there is no downside for the Government if they accept the amendment; I do not understand what the problem is. Nobody has yet explained why the world will come to an end or something. It seems fairly straightforward: the House decided in 2018 on a simple humanitarian proposition. The Government have tried to find a way of arguing against that. I am sorry, but it has not persuaded me and I hope it has not persuaded the House. I would like to test the opinion of the House.

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, this is the grand finale of Report stage. If the Chamber is not packed then I am not personally dismayed because we prefer quality to quantity in our debates, do we not?

Subsections (1) and (2) of Clause 41, as the noble Baroness, Lady Jolly, explained just now in the preceding debate, contain “breathtaking” powers, to use her word. The very valuable report of the Delegated Powers and Regulatory Reform Committee says that

“clause 41 … contains a Henry VIII power for a Minister of the Crown by regulations to repeal or amend any Act of Parliament passed from time immemorial until the end of the transitional period (the end of 2020) as part of such provision as the Minister considers appropriate in consequence of the Act. Such regulations are made pursuant to the negative procedure.”

That provision for the negative procedure is set out in Schedule 4 on page 68, line 9. It is that point of the Bill that I seek to amend.

Clause 41 and Schedule 4 provide a portmanteau Henry VIII power. It is the ultimate set of Henry VIII powers; you can go no further with such powers than the Government seek to go with these. The Government might seek to defend themselves on the basis that these powers are provided in the context of consequential and transitional provisions, but if the Minister seeks, in the pursuit of the policy set out in the Bill as a whole, to amend primary legislation there is nothing at all in the legislation to inhibit him in any way from doing so.

The Government might also seek to defend themselves on the basis that the courts in practice would construe pretty strictly what powers the Government sought to exercise under these provisions, but we do not want these matters going to the courts. If they do, it takes the courts and judges into political terrain that it would be much better they kept out of.

The Government take powers in Clause 41 to amend or, indeed, repeal any previous enactment up until the end of this year. The noble and learned Lord, Lord Judge, pointed out to us yesterday that a certain provision of Magna Carta was vulnerable under the policy adumbrated in the Bill. I am sure that when he comes to respond, the Minister will explain that he has no intention of repealing Magna Carta. Indeed, we have already been reassured in previous debates that the Government do not intend to use the Henry VIII powers with which they have peppered the Bill to undo the devolution settlements or to pursue other draconian purposes.

However, the Government really have written a constitutional monstrosity into the Bill. As the noble Baroness, Lady Kramer, said just now, this is a bad and improper precedent. Unless the Government can produce a justification, which I find unimaginable, for the taking of these extravagant powers they should not write them into the Bill at all. As the noble Baroness suggested, in an age of populism it is particularly undesirable that extreme powers be taken casually. It is a proper responsibility of your Lordships’ House to keep an eye on what is going on and, where legislative practice becomes unacceptable, to point it out to the other place.

If Members of Parliament perused the Bill and informed themselves in close detail about it, they might consider that they had been rather insulted. We should certainly give them the opportunity to consider that possibility. Members of Parliament on the Conservative side of the House of Commons might be uneasy about what appears to be in conflict with the Conservative Party’s manifesto. I have taken the precaution of looking at it. In the section entitled “Protect our democracy”, it is asserted:

“As Conservatives, we stand for democracy and the rule of law.”


It goes on to say:

“Once we get Brexit done, Britain will take back control of its laws.”


I do not think that, when voters studied the Conservative Party’s manifesto and Conservative parliamentary candidates took it as their oath of prospective office, they actually thought that taking back control of our laws following Brexit would mean a power grab on the part of the Executive, which is potentially happening.

Ministers have already sought to reassure us. In the debates we held on Clauses 21 and 26, it was insisted that there were no such malign intentions as the legislation would make possible. They wanted to reassure us by pointing out that the regulation-making powers so extensively set out in Clauses 21 and 26 could be exercised only under the affirmative resolution procedure. That is a mitigating circumstance, but it by no means undoes the mischief of taking the Henry VIII powers in the first place.

However, in the letter that he wrote to us, the noble Lord, Lord Duncan of Springbank, acknowledged that the regulation-making powers it is proposed that the Government should have under Clause 41 would be exercisable under the negative resolution procedure. He gave no explanation or justification for that. I do not know whether this inconsistency in approach and resort to extensive regulation-making powers under the negative procedure at Clause 41 is the result of a drafting error and a mistake, but if it was there will be an opportunity for the Government to amend it.

Following the amendments made by your Lordships’ House, the Bill will go back to the House of Commons. It would be quite easy for the Government to amend it in this regard, and they could do so with no loss of face or dignity. When Governments are flush with electoral success, they have a tendency to swagger. The bigger the majority and the higher the euphoria of electoral success that they feel, the more important it is that they act soberly when legislating and proceed with humility and magnanimity in their dealings with Parliament. Magnanimity is a Latinate word, which I hope will appeal to the Prime Minister, but if humility and magnanimity are too difficult, the Government should at least conduct themselves in relation to Parliament with respect and courtesy. Macho attitudes to legislation make for bad law.

The manifesto goes on to say that

“we… need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts”.

Indeed, our scrutiny of the Bill thus far has indicated that there is a great deal for the Government—and the commission it proposes—to consider in the relationship between the Government, Parliament and the courts.

The manifesto then goes on to say that the new Government and their commission will want to look at the role of the House of Lords. I hope that Ministers in the other place and Members of Parliament will understand that the traditional constitutional role of your Lordships’ House is to act as an advisory and revising Chamber. The principal way in which the House of Lords offers its advice and proffers its revisions is by way of amendments to legislation. In doing so, your Lordships’ House poses no threat to the Government. There is no lese-majesty. In all the debates we have had on this Bill, it is clear that this House accepts that the Government have a mandate for Brexit. There is no attempt by your Lordships to subvert Brexit and thwart the Government in their purpose of enacting this withdrawal legislation.

[Lord Hamilton of Epsom]

It is probably true that since the election and the outstanding victory of the Prime Minister, this House has finally accepted that a Government are in power who want to deliver Brexit. However, that certainly was not true before the election; a very large number of amendments passed by your Lordships’ House then were intended precisely to stop us leaving the EU. They were wrecking amendments which went completely in the face of the decision taken by the people in the referendum.

[Lord Howarth of Newport]

As the noble Lord knows, I shared some of his frustrations about the last Parliament. However, in the last Parliament this House did not subvert the authority of the elected House but sought to be in consonance with its wishes. I therefore do not think that Members of Parliament need to be concerned —nor did they need to be concerned during the last Parliament—that the House of Lords is a threat to the House of Commons. That plainly is not the case in this Parliament.

Amendment 29 is a moderate amendment. There are two issues. One is the Government’s propensity to take excessive Henry VIII powers. The other is procedure—the manner in which Parliament should approve the regulation-making powers that would be brought forward under this legislation. My amendment does not seek to remove the Henry VIII powers. It does not say that Clause 41 should not stand part. I do not know what the consequences would be for the proper functioning of the legislation if I had sought to achieve that. I have sought to amend the aspect of the Bill dealing with the procedure for adopting regulation-making powers. I hope that the Government accept that it would be appropriate to substitute the affirmative resolution procedure for the negative one. Even then the amendment would not be ideal, because if your Lordships’ House rejected regulation-making powers under the affirmative procedure, there would be howls of protest, as my noble friend Lady Hayter observed earlier in our debates. It would be regarded as a constitutional outrage on the part of your Lordships’ House. At any rate, if the Government are willing to accept this amendment, it will enable Parliament as a whole—both Houses—to express its view on the legislation and, if necessary, for either House to reject any attempt that the Government might make, by way of regulations, to alter the principles of law or to rewrite primary legislation. I beg to move.

European Union (Withdrawal Agreement) Bill

Lord Hamilton of Epsom Excerpts

3rd reading & 3rd reading (Hansard): House of Lords & 3rd reading (Hansard)
Tuesday 21st January 2020 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I too thank everyone involved in the Bill: Ministers, the Opposition, the Cross-Benches, the Bill team and other officials, the clerks and other staff of the House and, as the Minister mentioned, the committees of the House, which provided us with such useful and timely reports. Of course, I also thank the many colleagues on my own Liberal Democrat Benches—too numerous to mention—who have taken part in the Bill’s proceedings, as well as my leader and noble friend Lord Newby, my Chief Whip and noble friend Lord Stoneham, and our adviser Elizabeth Plummer who is, quite frankly, indispensable to us.

Clearly, we would have preferred not to have had this Bill. We on these Benches continue to think that Brexit is a bad mistake and that the UK will, sooner or later, re-join the EU. We feel that this Bill has been improved by the detailed scrutiny and votes in this House that I believe we were entirely right to deliver. We have improved the Bill in two major areas: first, respect for people—the rights of EU citizens and child refugees—and, secondly, respect for the law and the constitution regarding the courts, judicial independence and the devolution settlement. We hope that the other place will consider those carefully, but I am bearing in mind what the noble Baroness, Lady Hayter, has just said. I strongly believe that we have given value for the many days of work we have done on the Bill. I just wish that the Government had been in listening mode.

[Lord Hamilton of Epsom (Con)]

My Lords, I shall not delay the House long—I know that we all want to go home—but I had a conversation with a distinguished noble friend of mine a few hours ago, and he said, “Of course, the Government will give way on a few small amendments on this to satisfy your Lordships’ House,” and I strongly disagreed with him. Indeed, the noble Baroness, Lady Hayter, has confirmed that the Government will use their majority to turn down all these amendments.

There could only be two reasons why the Government might not want to do that. One would be if there were a tremendous fault in the legislation, and some drafting were completely inconsistent and needed to be adjusted. There seems to be none of that: there have been no compelling arguments as to why the Bill should be adjusted in any way. The other reason would be to create good will in your Lordships’ House. But I have to say that there is no good will towards your Lordships’ House in the other place. We have lost all our friends, who ensured that we continued as an appointed House. Jesse Norman, who was key to all that, is a Minister, and we roughed up everybody else.

The noble Lord, Lord Howarth, described the Government as suffering from euphoria as a result of their majority. I think “euphoria” is a bit strong, but the Government do now have a great feeling of relief because they have a majority that will enable them to ensure that the people’s wish in the referendum of 2016 is fulfilled. The Government, and the other people I talk to in the other place, feel that there has been a conspiracy of remainers, both in this House and in the House of Commons, to ensure that we stayed in the EU.

The debate I have listened to here on this Bill gives me the impression that this House is now resigned to the fact that we are going to leave the EU, but will make those negotiations as difficult as possible for the Government, so that we will get a very bad deal and people can be justified in their view that we should never have left. The storm clouds are gathering, and there is constant speculation in the press on what will happen to this House—but we seem to be completely oblivious to it. We should be very careful about where we go over the coming months.

[Lord Cormack (Con)]

My Lords, that is the most ill-judged—