European Union (Withdrawal Agreement) Bill

Lord Kerr of Kinlochard Excerpts

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

[Lord Kerr of Kinlochard (CB)]

My Lords, on the morning after the 1996 presidential election, which he had lost, Senator Bob Dole was asked how he had slept. He replied, “Like a baby. I woke up every two hours crying my eyes out.” I know how he felt. I believe that our country has made a historic mistake, but it has made it. The people have spoken, and we leave the EU at the end of the month. This means that we should not consider any amendment which could conflict with that deadline.

However, within that constraint, I have to disagree with the noble Lord, Lord Forsyth—for the first time, I think—and, with great humility, with the noble Lords, Lord Cormack and Lord Taylor. I think the House of Lords should do its job. We are, as the noble Lord, Lord Forsyth, said, a revising Chamber. We need to look particularly closely at what this Bill says and its implications for relationships between the Executive and Parliament, between the Executive and the judiciary, and between the constituent parts of the United Kingdom. We shall spend much more time on this than the Commons did. Some of the issues that we shall discuss were not discussed in the Commons at all. Where we are not satisfied with the Government’s explanations, I believe we should give the Commons the chance to think again.

First, on Parliament, as others have pointed out, there is no provision in this Bill for parliamentary oversight of the Joint Committee. It will carry out the crucial task of developing the detail of how we withdraw. There is no provision for oversight of the negotiations on the future arrangements. The earlier, October version of the Bill, gave Parliament powers on mandate, monitoring and outcome, as the noble Earl, Lord Kinnoull, pointed out. All that is gone. The European Parliament has such powers; this Parliament, apparently, is not to have them. The House may wish to reflect on that contrast.

Secondly, I do hope that we shall hear in Committee from the noble and learned Lord, Lord Judge, the greatest living expert on Henry VIII powers, because Henry VIII is endemic throughout this Bill, particularly, of course, in Clause 21. As others have mentioned, in relation to Northern Ireland, Clause 21 gives the Government the right, for a year, to pass by regulation any change which would otherwise require primary legislation, including changes to the Act itself. That is quite striking; we should reflect on the precedent.

Thirdly, we need to consider what the Bill does not say. Here, for me, the paramount issue is how the devolved Administrations are to be involved in the Joint Committee and in the future negotiations. In the Queen’s Speech debate, we heard from the noble and learned Lords, Lord Hope and Lord Wallace of Tankerness, as well as the noble Lord, Lord Reid of Cardowan, about what is now a clear and present danger to the 1707 union. Edinburgh, Belfast and Cardiff resented being kept at arm’s length by Mrs May’s Government and being blindsided by Mr Johnson’s Irish surrender. With Stormont back up and running, it should be possible to find a way of lancing this boil. The House may wish to consider asking the Commons to write the requirement into the Bill.

Finally, declaring my interest as a trustee of the Refugee Council, I believe that we must not forget the Dubs amendment. The Government want us to do so, although the Minister assured us that government policy has not changed. If the policy has not changed, why are the Government taking away the provision in the 2018 Act? It was a pretty modest provision. I believe we need to seek its retention. The argument is very simple: what kind of country do we think we are? Are we really meaner and less humane than our predecessors were in 1938, 1956 or 1968?

I have not addressed the substantive Brexit question; the Bill is about how, not whether, we leave. I myself fear that the process will be protracted and painful and will end badly for our country and for all of us, particularly those most left behind. However, there is not an end of history; the story will go on:

“that which we are, we are;

… Made weak by time and fate, but strong in will

To strive, to seek, to find, and not to yield.”

I believe my children will see us back where we belong: in the comity of European nations that share common values, work together for the common good and are determined not to yield in its defence.

European Union (Withdrawal Agreement) Bill

Lord Kerr of Kinlochard Excerpts

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

It is important to note that the power is restricted to making provisions which implement, supplement or deal only with matters arising out of the relevant sections in the agreement relating to social security co-ordination; I reassure the House on that point. That is why we cannot accept this amendment, which would sunset the powers to make regulations only two years after the end of the limitation period, whereas the withdrawal agreement social security co-ordination provisions have no such sunset and potentially may last decades for many people. To put an expiration date on the power could therefore prevent the UK ensuring—

[Lord Kerr of Kinlochard (CB)]

I understand the point the Minister is making and that the scope of action is limited to the areas covered in the withdrawal agreement—I understand all that. However, would it not be more reassuring to recipients if the sunset clause were there, and if changes could be made only after the expiry of the period by primary legislation? I understand the argument, but if the argument is reassurance, surely it is more reassuring to people that changes could be made only by primary legislation than that they could be made using these Henry VIII powers laid out in these provisions.

[Lord Bethell]

My Lords, the point is well made, and I understand the desire of the Houses to keep scrutiny on measures, which is entirely fair. However, in this case, confidence, solidity and a sense of commitment can be promised and delivered by the Government only if they do not have the fear that the pipeline of legislation going through the House might delay important technical changes and hold up the delivery of these benefits. It would put a huge pressure on these Houses of a kind that is not realistic or reasonable to have the entire legislative timetable of our proceedings held hostage to the microchanges and small needs of EU social security regulations and improvements, which may in decades to come affect only hundreds of thousands of people and require small administrative changes in regulations.

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to all noble Lords who have contributed. Like many noble Lords who have already spoken, I am conscious of the sensitivities that surround the devolved settlement that could impinge upon its success in the future.

Let us be clear: Clause 15 is essential to implement our international legal obligation under the withdrawal agreement and under the EEA-EFTA separation agreement, which requires that we establish an independent monitoring authority. I hope that it also demonstrates our commitment to protecting the rights of those citizens covered by the agreements. Therefore, it is necessary for Clause 15 to stand part of the Bill.

Of course, the IMA will offer an important layer of additional protection over and above the wide range of complaint and appeal routes that already exist for EU citizens in the United Kingdom. However, expanding the IMA scope through Amendment 57—as proposed by the noble Lord, Lord Greaves—would, I fear, divert the body’s resources from its important role monitoring citizens’ rights and obligations. Therefore, I would resist such an amendment. It also risks creating unhelpful duplication, with all the confusion and wasted resources that could accompany that, so I invite the noble Lord, Lord Greaves, to withdraw that amendment.

The withdrawal agreement requires that the IMA be established by the end of the implementation period; that is the goal. The appointment of an interim chief executive to the IMA—a point raised by the noble Lord, Lord Greaves—is considered vital to meeting that deadline, as it will be essential from the point of view of staffing and procurement decisions that will need to be taken in advance of that date. Indeed, there have been other examples of interim chief executives being appointed to such bodies in order that suitable preparation can be made for them to be up and running at the appropriate time. Removing that provision through Amendment 47 would jeopardise the timely establishment of the IMA, and risk putting us in breach of our international law obligations. I hope that I have explained the rationale for that approach.

In order to give full and proper effect to our obligations in international law, we have designed the IMA to be robust and independent, in line with the best practice for the establishment of new public bodies. While I understand the intention behind a number of the amendments in the name of the noble Lord, Lord Greaves, which he perceives as strengthening the independence and robustness of the IMA, I hope I can assure him that they are unnecessary. I appreciate that they are essentially probing amendments in order that we can explain the position.

[Lord Kerr of Kinlochard]

Perhaps I may probe a little further. The independence of this authority is important—important because we have agreed to introduce an independent authority and important to those whose affairs it will be keeping an eye on.

When I was a Permanent Secretary, I would have had no difficulty in coming to the conclusion that a number of non-departmental bodies could be abolished and their functions transferred elsewhere because it would be more efficient, effective and economical to do so. The test in paragraph 39(2) of Schedule 2 is not hard for the Executive to meet. Does the Minister think that the body is more likely to be independent, feel independent and be seen as independent if it is continually under the threat of the sentence of death in paragraph 39(1), which says that its powers can be transferred? I agree that it is a habit for quangos to survive long beyond their natural useful lives, but what is the rationale for this power transfer by regulation? Is the Minister convinced that the test of efficiency, effectiveness and economy does not slightly conflict with the requirement for independence?

European Union (Withdrawal Agreement) Bill

Lord Kerr of Kinlochard Excerpts

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

[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.

[Lord Kerr of Kinlochard (CB)]

My Lords, I support Amendment 18. It would be very much in the Government’s interest to buy the amendment; it is quite hard to see what arguments could be made in public against their doing so.

I want to speak briefly to Amendment 29, to which I have put my name. I have little to add to what was said on the subject by the noble Baroness, Lady Randerson—she knows much more about it than me. I disagree only with one thing that I think she said, which was that the JMC had tended to meet regularly but not frequently. It might have been better to say that it met rather irregularly and very infrequently.

I am pleased to be able to say that my text for this debate comes from a point made yesterday by the noble Lord, Lord Howarth of Newport, when he stressed the need for courtesy and respect in the handling of the devolved Administrations. I strongly agree with the noble and learned Lord, Lord Wallace of Tankerness: things are getting very tense. I agree with the point made earlier in discussion on this group of amendments that the devolution settlement is in clear and present danger. As we approach the minutiae of this Bill, we need to have the broader picture in mind. Fine words have been said and undertakings given by successive Front-Bench spokesmen, but they are not perceived in Cardiff or in Edinburgh to have been delivered on. That is why it is a good idea to write into statute the role of the JMC.

That for me is the second-best option. The best option would be to include representatives of the devolved Administrations in the negotiating teams that go to Brussels when the subject for discussion is going to touch on the competence of the devolved Administrations. The battle over common frameworks will be very much easier if the devolved Administrations believe they have been involved in the substance of the negotiations.

I recall that when we first joined the European Union, long before I was born, the first representatives to discuss, for example, fisheries in Brussels were John Silkin accompanied by Bruce Millen and Willie Ross. It was frequently the Scots who spoke on fisheries in the Council, although the legal establishment from London was sitting alongside them. I see no difficulty of principle, and I hope the Government do not, in including the representative devolved Administrations in the negotiating team.

European Union (Withdrawal Agreement) Bill

Lord Kerr of Kinlochard Excerpts

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

[Lord Howarth of Newport]

My Lords, I say to the noble Lord, Lord Bowness, that I have nothing but good will towards him despite our profound disagreements on Brexit.

It has been a pleasure for me in our Committee proceedings up until now to be able to support my noble friend Lady Hayter but, sadly, at this point I have to part company with her. I cannot agree with her or my very good friend the noble Lord, Lord Wigley, that their new clauses are appropriate. They are in effect seeking to substitute the House of Commons for the Government. Under their proposals, the House of Commons would give the Government their marching orders as they move into these negotiations and the Government would be expected to act as an agent of the House of Commons. That is constitutionally inappropriate and will not work well in practice. We saw in the last Parliament the damage done to our national endeavour by the insistence of the House of Commons that it must take charge of the process of negotiation. It was a disaster for us.

When it comes to setting objectives, there is no alternative but to trust the Government. The Government will have to make judgments as they negotiate and the objectives they set for themselves at the beginning may well have to be modified in the light of their assessment of what may be achievable.

I do not think that the analogy the noble Earl, Lord Kinnoull, suggested between the procedures and powers of the European Parliament and the way for us to proceed in our system of parliamentary government is appropriate either.

Openness—the transparency that my noble friend Lord Liddle was calling for—may be difficult, if not inappropriate, in the circumstances of a complex, lengthy and difficult negotiation in which it may not be prudent for the Government to make public what they are thinking of doing and the ways in which they intend to set about it. As the noble Lord, Lord Hamilton of Epsom, reminded us, the House of Commons and your Lordships’ House will have ample opportunities to express their views and to hold the Government to account, not least through the work of the Select Committees of your Lordships’ House.

I support the intention of the noble Lord, Lord Wigley, that the Government should be expected to maintain a full and constructive dialogue and full consultation with the devolved Administrations. We debated that principle yesterday and again in our first debate this morning.

It is very important not only for the benefit of our union—fragile as it is at the moment—but for reasons of practicality and of ensuring that outcome of negotiations makes realistic sense in terms of the situation in Wales, Scotland and Northern Ireland. I would not go as far as the noble Lord, Lord Wigley, or be as prescriptive as him, although I note there is a certain vagueness in the way he has formulated his paragraphs on the requirement for consultation. I think he takes it a bit too far, for the reasons I have given.

There may well be moments in the process of negotiation when the Government consider that it would be helpful and in our interests that they should lay out their position very fully to the House of Commons and seek its endorsement, but that needs to be a tactical judgment in the light of the way events develop. I do not think it is wise for us to seek to tie the Government’s hand and inhibit their freedom in conducting these negotiations as best they can in the interests of our country.

[Lord Kerr of Kinlochard (CB)]

The noble Lord, Lord Howarth, finds the amendment positively undesirable. I think it is quite difficult for the Government to argue their case, since the amendment merely reinstates what was in their October version of the Bill, so in October the Government must have thought this perfectly workable and not subject to the objections raised by the noble Lord, Lord Howarth, who obviously thinks that the Government were a bit soft then.

[Lord Howarth of Newport]

It was desperate expedient. The Government had no option, given the parliamentary arithmetic.

[Lord Kerr of Kinlochard]

That is the point I wanted to touch on. I thank the noble Lord. I have gone through the Conservative manifesto very carefully and I cannot find any commitment not to keep Parliament fully consulted on the process of the negotiation. It seems to me that we are not in serious Salisbury convention territory here.

The substantive arguments against this amendment, rather than the politically cynical argument against it advanced by the noble Lord, Lord Howarth, is that it weakens the Government’s hand in negotiation. I know from my past career that that is completely untrue. It is the reverse of the truth. I spent quite a long time unsuccessfully trying to negotiate air services liberalisation with the United States. The arguments for it were easy. Even I could win the argument, but I could get nowhere because of the power of parliament used as a negotiating weapon by American negotiators: the power of the Senate to refuse. When you win the argument with the American, he says, “You make a very good point, but we’d never get it through on the Hill.” I do not believe that Parliament as the Wizard of Oz would be a terrible threat to the Government, provided they had explained what they were trying to do. I know that being obliged to keep Parliament informed is an extremely good weapon in the negotiator’s hand.

I come back to a more general point, which has been made many times in these debates by the noble Lord, Lord Bridges, and which was made by the noble Lord, Lord Barwell, in his remarkable maiden speech which we all greatly admired. Honesty—not pretending that you can have it all and admitting that there are trade-offs to be had—goes with transparency, and it seems to me that this perfectly reasonable means of ensuring a degree of transparency to Parliament, which was perfectly reasonable and acceptable to the Government in October, would be consistent with trying to bring public opinion to understand some of the difficulties and trade-offs that lie ahead in the negotiation.

[Lord Howarth of Newport]

Can I put it to the noble Lord that he was not actually arguing to what this amendment provides? He was arguing for transparency and for negotiators to be able to use in their negotiation the tactic of saying, “We’ll never get it through Parliament”, or, “We’ll never get it through Congress”, but that is different from what this amendment prescribes, which is that the objectives which the Government would have in their negotiation must have been approved by the House of Commons at the outset. That is a different proposition.

[Lord Kerr of Kinlochard]

Given the majority in the House of Commons, it is not a terribly high hurdle. In a way, this is an obscure debate as we know what the answer is going to be—the Government can get their way in the House of Commons. It is odd for the Government not to want to strengthen their negotiating hand by having a procedure of this kind—or a simplified version, as the noble Lord, Lord Bowness, hinted at. To have something like that would strengthen their hand and provide them the means of ensuring that the country is brought along to understand the trade-offs that will have to follow.

--- Later in debate ---

Finally, I believe that the British public are essentially humanitarian in their instincts. I believe that, when the argument is put, they support the idea that we should be generous as regards child refugees—as I say, not taking them all, but taking our share of responsibility, particularly where family reunion is concerned. I believe that a measure such as the one I am putting forward will have the widespread support of the British people, which is why I am happy that the amendment is here. I hope that the Government will find the ability to support it, even at this late hour.

[Lord Kerr of Kinlochard]

My Lords, my name is on the amendment because I regard it as the most important matter of honour that we must deal with in the Bill. The whole House admires the stamina with which the noble Lord, Lord Dubs, has pursued this issue. I declare an interest as a trustee of the Refugee Council, which was run by the noble Lord for many years and still runs on Dubs energy and still gets his constant support.

On this issue, the House was persuaded by the noble Lord’s arguments in 2016, and again in 2018. We are now in a curious position where the Government say that the 2018 provision is undesirable and needs to be replaced with this new one. The most important thing about the Government’s proposed new Clause 37 is that it kills Section 17 of the 2018 Act. What is the difference between the two? The 2017 Act laid on the Government the obligation to “seek to negotiate”—not to negotiate, because we cannot do that because a negotiation has two sides—a deal for these children. Everything else in the proposed new clause is the same as in Section 17, except that we now find that the Government must make a statement to us on what their policy is.

I am not terribly worried about the Government’s policy here. I believe the assurance given by the noble and learned Lord, Lord Keen, at Second Reading, that the Government’s policy has not changed. I believe that the Government want this to happen. However, I am not clear about what priority the Government attach to it and I am very suspicious that they wish to use it as a negotiating card. That is what is most alarming to me and, to be honest, most disgusting. The fate of these children should not be seen as a matter for negotiation.

The noble and learned Lord, Lord Keen of Elie, on Monday night made one substantive argument against this amendment, apart from saying that government policy has not changed—on which, as I say, I believe him. He said:

“It is vital that the Government are not legally constrained in those discussions.”—[Official Report, 13/1/20; col. 554.]


Implicitly, that means that the Government might not wish to pursue this and might wish to try to trade willingness to do this for some concession by the other side. That seems particularly offensive.

--- Later in debate ---

[Baroness Williams of Trafford]

The reason we have not had a reply is probably, as the noble Lord pointed out, to do with the fact that we have a new Commissioner. I do not agree with the noble Lord’s point—this amendment ties the Government’s hands in negotiation, and we do not wish to see that. We want to articulate our commitment through the manifesto and in Clause 37.

[Lord Kerr of Kinlochard]

I am not quite clear on how it ties the Government’s hands. If we leave what is now on the statute book in place, there is an obligation on the Government to seek to negotiate. The Government say that they have already started seeking to negotiate, so I am not sure how it ties their hands.

I am left suspicious. I am with the noble Baroness and am prepared to agree that policy has not changed. I reject dog whistles and dead cats, and I believe the Government’s policy has not changed. What bothers me is that I do not know what priority they attach to it in the coming negotiations, and I fear that we are into bargaining chip country, which is really offensive.

[Baroness Williams of Trafford]

The fact that the Home Secretary wrote to the Commission underlines our commitment, as does the fact that we put it in the manifesto and in Clause 37. The amendment to Section 17, to which the noble Lord referred, was an instruction to the Government, and I do not think that the Government should be bound by that.

I want to pick up on the noble Lord’s point about bargaining chips. Section 17 of the 2018 Act talks about seeking to negotiate. In one context—the way in which the noble Lord, Lord Dubs, puts it—that is noble, and I have absolutely no criticism of his intentions. On the other hand, when the Government say that they will write to the Commission and seek to engage with the EU in the coming year, that is seen as using children as a bargaining chip. I am not entirely sure how the Section 17 amendment, which talked about seeking to negotiate, and what the Government are proposing, which the noble Lord feels very sceptical about, are in any way different when it comes to bargaining chips.

[Lord Kerr of Kinlochard]

If the Government say, as they did on Monday night, in terms, that that amendment will not do because it is vital that the Government are not legally constrained in these discussions, that seems to imply that the Government might not pursue this point if the EU 27 decide to strike some sort of bargain with us which entails our not pursuing this point. If the statute book remained unamended—if the 2018 Act, which binds the Government only to seek to negotiate, remained in force—in what way would the Government be legally constrained unless they intended to negotiate in bad faith, which I do not think is the case, or to regard this as a lower priority, as a card that could be played? I find that very offensive.

European Union (Withdrawal Agreement) Bill

Lord Kerr of Kinlochard Excerpts

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

[Lord Whitty]

That is absolutely true and I believe that it is gradually being realised by large sections of British society, business and individuals. Nevertheless, 31 January is a symbolic date in that we leave the political institutions of Europe, and that upsets me as it does the noble Lord, Lord Steel. I was very positive in the 1975 referendum, although my party was of a rather different view, and I have remained a committed European since. Sometimes I got fed up with Europe, but one of the issues referred to by the noble Lord, Lord Teverson, that of EU citizenship, is making me seriously emotional because it concerns my grandchildren.

My grandchildren were born into European citizenship. They are too young to have voted in referenda or general elections, but we are depriving them of all the benefits of European citizenship that the noble Lord spelled out. There must be a way of their being able to reassert their birthright at some future date, through arrangements between ourselves and the institutions of the European Union. I therefore very much support the intent of the noble Lord’s amendment. How it is actually worked out has yet to be made clear to me, but I hope that Ministers will at least take on board that, whatever view we took of Brexit, we are depriving some people of rights through a decision over which they had no say. That is one of the things I will be thinking about on 31 January, and it could be resolved in the long term by future arrangements between ourselves and the European Union.

[Lord Kerr of Kinlochard (CB)]

My Lords, I support the amendment in the name of the noble Baroness, Lady Hamwee, and I use that as an excuse to ask the Minister what the status is, from 1 February, of the EHIC card. I had assumed it would remain valid until the end of the year, but I have seen suggestions in the press in the last few days that it will be invalid from 31 January.

On the point made by the noble Lords, Lord Teverson and Lord Whitty, of course my heart is with them, but as the noble Lord, Lord Teverson, said, this is a matter of treaty amendment and it does not seem likely to me that it will go very far. It is of course driven by good will in the European Parliament, created in part, no doubt, by the noble Lord, Lord Teverson, during his time there. Reading the debates in the European Parliament, it strikes me as significant that the arrangements we have in this country for obtaining settled or pre-settled status are not seen as satisfactory. There are a number of reports in the continental press from which I draw one common factor: it is the absence of any documentary proof of one’s status that is particularly worrying for EU nationals living in this country.

My last point concerns an area in which I am very supportive of what the Government are trying to do and I urge them to go on trying to do it. For UK nationals resident in continental Europe, the absence of any continuing right of onward movement, even if their status in an individual member state is secure, is a very serious defect. I encourage the Government—I know this is their aim—to go on seeking to have that defect remedied.

[Lord McNicol of West Kilbride (Lab)]

My Lords, I declare an interest—unfortunately, it is not a house in France or Italy. My uncle, Neil McNicol, is an expat who lives in Spain and if these amendments were to go through, it would affect him.

Amendment 37, in the name of the noble Baroness, Lady Hamwee, would require the Government to take steps to preserve the rights of UK citizens living in the EU, EEA or Switzerland. Proposed new subsection (2) cites the uprating of pensions and the continued availability of public healthcare as priorities, but importantly, there would be flexibility for Ministers to act in additional areas.

European Union (Withdrawal Agreement) Bill

Lord Kerr of Kinlochard Excerpts

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

[Lord Dubs]

I am grateful to the noble Lord. I am not sure that I have every figure at my fingertips, but let me do my best. Section 67 of the 2016 Act covered children being able to come to Britain without having family here. The Government capped the total at 480. I understand that we are quite well short of that, even today. The Government said the number of 480 was limited by the ability of local authorities to find foster families. That is not the case with children joining their relatives here, where clearly local authorities do not have to find foster places. I think, to date, several hundred children—the Minister may correct the figure—have come under the family reunion provisions in the Dublin treaty. We might be talking about 800. Without having the exact figures, we are probably talking about 1,000 or 1,000-plus in the Greek islands and in northern France. In the context of the international situation, that is very few.

The Minister said that we have taken a certain percentage of the EU total. Yes, we have, but probably only in relation to the size of our country. I do not dispute the figure from the Minister. However, refugees in a wider sense are going to be the most challenging issue to the whole world, and certainly to Europe and ourselves, over many years. But what we are talking about here is a very small number of children, who will be positively affected by this measure. That is why I am pretty keen on it. We had a small demo in Parliament Square yesterday, with a lot of people supporting it. We have had more than 200,000 signatures on a petition supporting the provision. I believe that we are essentially on the side of public opinion. I believe that we are essentially on the side of humanity. I beg to move.

[Lord Kerr of Kinlochard (CB)]

My Lords, I supported the noble Lord, Lord Dubs, in Committee and I support him now. I need to declare an interest as a trustee of the Refugee Council. I also need to declare total bafflement; I have absolutely no idea why Clause 37 is in this Bill. I do not understand what the Government are planning to do. I took part in Committee and, after speaking on this, I listened to the Minister at Second Reading and am still none the wiser as to why it is here.

What is on the statute book now in the 2018 Act is a commitment that the Government will seek to negotiate a reciprocal arrangement for these poor children. This clause repeals that requirement and replaces it with a commitment, in almost exactly the same terms, to make a statement to Parliament, which is not a very strong commitment. Why do the Government want to repeal the 2018 Act in this respect? We have heard three possible explanations: first, that it is unnecessary to keep this on the statute book because the Government intend to negotiate on this matter, and the Minister told us that a letter had been written; secondly, that it was always inappropriate to the 2018 Act; thirdly, that it is important not to tie the Government’s hands.

I do not find the first explanation very easy to understand. If the Government are seeking to negotiate and have written a letter designed to open negotiations on this matter, why should they want to repeal the commitment to negotiate? It does not make any obvious sense. On the second argument, regarding inappropriate positioning in the 2018 Act, they say it is much better to put it in the new immigration Bill. But there is no new immigration Bill as yet, and these negotiations are about to start. Also, the Government are not removing from the statute book any reference to this issue; they are replacing it with the language we see in Clause 37. If the 2018 provision was inappropriately placed, the 2020 provision that the Government seek is inappropriately placed. I do not understand that one.

Moreover, it is not a matter appropriate to an immigration Act, because what we have in the 2018 Act and in this Bill is a reciprocal requirement. The idea is that the Government would negotiate to ensure that the 27 would be willing to take poor children in this country who are in this plight and enable them to join their family elsewhere in the 27. The provision for the emigration of small children would be highly inappropriate to an immigration Act or immigration regulations. I believe it follows that the argument about it being inappropriately placed falls.

The third argument is still more difficult and slightly awkward. I am sorry not to see him in his place, but at Second Reading the noble and learned Lord, Lord Keen, said:

“It is vital that the Government are not legally constrained in those discussions.”—[Official Report, 13/1/20; col. 554.]


The noble Baroness, Lady Williams, said that the Government do not wish to see their hands tied. However, nothing in the 2018 Act would tie their hands; they must seek to negotiate. We are not saying that they cannot conclude a deal unless they have successfully negotiated. For myself, I do not think it likely that the negotiation on this point would fail, but we are not saying that if it did, everything would be off. We are simply saying that the Government should have a go. I do not see how that would tie anyone’s hands.

European Union (Withdrawal Agreement) Bill

Lord Kerr of Kinlochard Excerpts

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

[Baroness Williams of Trafford]

If noble Lords will hear me through—when he says that it excludes children. I suggest that if that were challenged in court, the court might come to a different view.

Furthermore, the UK will continue to be bound by the Dublin regulation during the implementation period, which means that unaccompanied children in the EU and the UK will continue to be able to reunite with family members during 2020. We will continue to process family reunion cases referred before the end of the implementation period.

Our record reflects the unique importance of protecting unaccompanied children and preserving the principle of family reunion, and that policy has not changed. My noble and learned friend Lord Mackay provided some clarity on the effect of both Clause 37 and Section 17 of the European Union (Withdrawal) Act 2018. Section 17 does not grant family reunion rights to unaccompanied children but concerns only negotiations on this matter, although I noted that the noble Lord, Lord Kerr, expressed disgust at the notion of negotiating. As per the amendment by the noble Lord, Lord Dubs, which became Section 17, the Government remain committed to seeking a reciprocal agreement for the family reunion of unaccompanied children seeking international protection in either the EU or the UK—that is, to ensure that these vulnerable children can reunite with family members in the UK or the EU.

Clause 37 concerns only the removal of the statutory duty to negotiate an agreement on family reunion for unaccompanied children who have applied for international protection in an EU member state and who have family in the UK, and vice versa. This debate is not on wider issues relating to refugees, asylum or family unity. Indeed, the Home Secretary wrote to the European Commission on 22 October, as I outlined in Committee, to commence negotiations on this issue, seeking to negotiate, as Section 17 set out. I assure noble Lords that the Government are intent on pursuing an agreement no less than that which we would have pursued under the original Section 17, as the noble Baroness, Lady Hamwee, posited earlier, although I confirm that I am unable to share the letter.

However, a statutory negotiating objective in primary legislation is not necessary nor the constitutional norm. We are restoring the traditional division of competences between Parliament and Government when it comes to negotiations, and similar changes have been made to negotiating obligations across the Bill. Furthermore, rather than removing Section 17, we have gone beyond the original amendment by the noble Lord, Lord Dubs, and provided a statutory guarantee that the Government will provide a statement of policy within two months of the withdrawal agreement Bill’s passage into law. This demonstrates our commitment to report in a timely manner and guarantees Parliament the opportunity to provide scrutiny. As I have said, we have already commenced negotiations. We will continue to deliver this negotiating commitment while removing an unnecessary statutory negotiating obligation, restoring those traditional divisions of competencies and going above and beyond to provide Parliament with an additional opportunity for scrutiny with Clause 37.

The noble Baroness, Lady Hamwee, raised the point about best interests. There is no intended or actual legal difference between the phrasing about how and when the best interests of the child should be considered for child family reunion transfers from the UK to the EU and vice versa. Both in the original Section 17 and in Section 17 as amended by Clause 37, there will be a consideration of whether it is in the best interests of the child to transfer from the EU to the UK in order to reunite with a family member, and vice versa. Neither Section 17 nor Clause 37 ever intended to consider whether it was in the child’s best interests to transfer to or from the UK separately from the consideration of whether it was in their best interests to join a family member. In addition to that, our existing statutory obligation in Section 55—

[Lord Kerr of Kinlochard (CB)]

The noble Baroness makes a characteristically careful and conscientious speech—I learned a lot and for that I am very grateful. Could she just tell us why Clause 37 is in this Bill?

[Baroness Williams of Trafford]

As I explained in Committee, Clause 37 is in this Bill because the Government wished to reiterate their commitment. It is similar in almost every way to Section 17, except that it does not instruct the Government to do something—it merely states the Government’s intention to do something.

[Lord Kerr of Kinlochard]

With respect, it waters down that commitment by making a completely different commitment to make a Statement to the House rather than seek to negotiate a deal in Brussels.

[Baroness Williams of Trafford]

That is correct. If the noble Lord has finished his intervention, I ask noble Lords to reconsider their intention to divide the House because I hope that I have provided the clarity necessary.

--- Later in debate ---

[Lord Callanan]

I am not sure I want to get into an arcane legal debate with the noble Lord, my noble and learned friend Lord Keen and others. I do not accept what the noble Lord says; I do not think this undermines the settlement.

We will of course continue to seek legislative consent. We will continue to take on board views and will work with the devolved Administrations on future legislation, whether related to EU exit or otherwise, just as we always have.

[Lord Kerr of Kinlochard]

There was much wisdom from the noble Lord, Lord Griffiths of Burry Port. It would help the atmospherics a great deal if the Minister could reassure the Scots and the Welsh—I think the Northern Irish are reassured already—that they will be included in the United Kingdom team negotiating in the joint committee. I say that because I think it is right to try to improve the atmosphere and because, after all these years, the Lady Griffiths is entitled to a dinner out.

[Lord Callanan]

She is indeed. I hope that at some stage in the future the noble Lord, Lord Griffiths, will repeat the endeavour which failed last night. The noble Lord, Lord Kerr, made a good point. We have already started discussions with Scottish and Welsh Ministers, and I hope that those with Northern Ireland Ministers are to come. I was present at some of the discussions in London a couple of weeks ago. A frame- work was put in place for joint ministerial committees; one on EU negotiations and one on ongoing EU business, which I chair. We will develop those consultations as we go into the next phase, and we are working on proposals to involve them in future negotiations. We will, of course, take that point on board.

We understand the importance of preserving both the spirit and the letter of the devolution settlements and the principles of the Sewel convention as the UK exits the EU. In response to the noble and learned Lord, Lord Morris, I say that international relations are indeed a reserved matter. However, the devolved Administrations do have an important role in implementing these agreements. Any devolved provisions made under the Act will normally be made only with the agreement of the devolved Administrations and we will engage with them on this, as we have always done in the past. The Government are committed to upholding these principles, but this is not changed by restating them in the Bill. Given what I have said, and the reassurances that I have been able to give, I hope that the noble Baroness will feel able to withdraw her amendment.