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.

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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.

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[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.