European Union (Withdrawal Agreement) Bill

Thangam Debbonaire Excerpts

Committee stage & Committee: 2nd sitting: House of Commons & Committee: 2nd sitting
Wednesday 8th January 2020 Commons Chamber

[Sir Robert Neill]

It is indeed a very interesting paper. Having been brought up as a common lawyer myself, my preference is inevitably to move towards a stare decisis approach. I think that that is something that we all wish to move back to as we reconstruct our statute book and legal texts thereafter. My hon. Friend and I will be entirely in accord on that.

The question is really about the route that we choose to get there and ensuring that we have proper scrutiny of that route, because any deficiencies in regulations would likely result in a judicial review. That is another irony: I am sure that the Government would not want greater risk of judicial review of their actions than is absolutely necessary. It would be a funny Government who made work for lawyers in relation to judicial review. That might be interesting for some of us, but I am sure that it is not something that the Government wish to do. However, without more explanation as to why we are going down that route, that is the risk.

First, I suggest to the Minister that he should seriously consider whether we move to a “necessary” as opposed to “appropriate” test—an objective test—which is much more likely to withstand challenge in the courts, because it is more likely to be readily evidenced and, I would have thought therefore, to the Government’s advantage. If the Government get their ducks in a row early when making regulations and have evidence to back the objective test, they are much more likely to withstand legal challenge.

Secondly, the Government would be much less likely to face challenges and we would get better scrutiny if we moved—certainly for the majority of policy considerations —to using the affirmative rather than the negative procedure. That would perhaps be a fair balance in the House. We will not necessarily be able to do primary legislation for all of our withdrawal, because there is too much of it. Sensible use of secondary legislation, to remove references to the European Union or something of that kind, can of course be done by the negative procedure. When policy considerations are involved, however, the use of the affirmative procedure would be consistent with the Government’s objective of bringing back control to the House, and with the movement towards our traditional UK approach to legal matters. I hope that the Minister will say something about that when he responds.

[Thangam Debbonaire (Bristol West) (Lab)]

It is a pleasure to see you in the Chair, Sir Roger, and I look forward to serving under your guidance. It is also a pleasure to follow the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who has given the Treasury Bench much to think about on the difference between subjective and objective tests, which I will bear in mind in my remarks.

I rise to speak to the official Oppositions’s amendments in this group. Amendment 1 relates to full transparency on the implications of the Northern Ireland-Ireland protocol. Amendment 4 would restore the clauses from the previous version of the Bill that related to negotiating arrangements for the protection of unaccompanied child refugees. New clause 1 would restore to the Bill the process of parliamentary scrutiny—it has been removed since the previous version of the Bill—over the process and outcome of negotiating the future relationship with the EU after we leave. I am sure that you will tell me if I stray from the topic of debate, Sir Roger.

The Opposition have tabled amendment 1 because the Government appear to be incapable of clarity about the implications of the Ireland-Northern Ireland protocol on the people of Northern Ireland and Great Britain, their jobs, their businesses and their way of life. That is too important to leave to chance. The people of Northern Ireland, and the people of the whole United Kingdom, need and deserve the transparency and accountability that the amendment proposes.

This part of the withdrawal agreement and the Bill have to be considered in the light of the historical context. The Good Friday/Belfast agreement was an extraordinary moment in the history of these islands and an awe-inspiring achievement of the incoming Labour Government of 1997 and of the latter period of the Major Government. Nobody my age could have thought that we would see peace in Northern Ireland in our lifetimes. The change to our way of life and the benefits to the people of Northern Ireland were unimaginable before the agreement. The Good Friday/Belfast agreement brought in a new era of peace and reconciliation.

The people of Northern Ireland, as well as its politicians across political and other divides, deserve our respect and admiration for how they have built the peace, worked to build united communities and created a way of life that seemed impossible a quarter of a century ago. Surely, no politician of any affiliation would want to destabilise that achievement—I am sure that that includes the Minister, the hon. Member for Worcester (Mr Walker), who is nodding. I am sure he needs no reminding—I will remind him anyway—that the Government have a legal obligation to adhere to the terms of the Good Friday/Belfast agreement. That means no opt-outs, no wiggling and nothing other than solid, uncompromising adherence to and support for the spirit and the letter of the agreement, no matter how hard that may be. Too many people have sacrificed too much for peace for the Government to do otherwise.

These are no small matters, so it is troubling in the extreme that the Government do not seem to know their own mind or the implications of their own protocol. The consequences of a return to a hard border or divisions between Great Britain and Northern Ireland, the fears emerging for people in Northern Ireland and the problems for businesses across the UK are all serious matters—hence our amendment. Businesses in Northern Ireland have spoken with one voice and are rightly concerned about the potential impact of border checks on goods between Northern Ireland and Great Britain. So, too, are businesses across other parts of Great Britain. Any business that currently sends goods to Northern Ireland should not have to expect border checks within the UK.

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[James Brokenshire (Old Bexley and Sidcup) (Con)]

I do not think any Conservative Member would, in any way, demur from the need to uphold the Belfast/Good Friday agreement, which has provided the bedrock of political stability, but does the hon. Lady acknowledge that the withdrawal agreement itself specifically underlines the point about unfettered access and, equally, that the protocol is intended to be replaced by the enduring agreement that we wish to strike with the European Union?

[Thangam Debbonaire]

I thank the right hon. Gentleman for his intervention but, of course, it is far from clear that that will be the case. What we are actually seeing, even from the Secretary of State, is that there will be customs checks. There will have to be border checks because of the nature of the protocol.

I ask the Minister to provide clarity. If the right hon. Member for Old Bexley and Sidcup (James Brokenshire) is correct, all well and good, but that is not the impression we have been given.

[Gavin Robinson (Belfast East) (DUP)]

The hon. Lady’s points are appropriate and balanced. The right hon. Member for Old Bexley and Sidcup (James Brokenshire), a former Secretary of State for Northern Ireland, suggests, as has been suggested throughout this debate, that there is automatic secession from the Northern Ireland protocol—there is not. Article 13(8) is very clear that the only way we secede from the Northern Ireland protocol is, first, if the European Union agrees and, secondly, if the confines of the protocol are no longer required. Those two things are not in our gift, so there is no certainty of our automatic secession, as the hon. Member for Bristol West (Thangam Debbonaire) was invited to believe.

[Thangam Debbonaire]

The hon. Gentleman is quite right. It is because of that uncertainty that many people in Northern Ireland have understandable fears about the future.

[Karin Smyth (Bristol South) (Lab)]

My hon. Friend is making an excellent point. We heard it again yesterday that the Government’s intention is for Britain to diverge from the European Union. If that is the case, as we are being led to believe, it is inevitable that there will be border checks somewhere. With respect to the right hon. Member for Old Bexley and Sidcup (James Brokenshire), there is absolutely no guarantee and no certainty. It is the Government’s wish to diverge that is causing this problem.

[Thangam Debbonaire]

My hon. Friend is absolutely right. I, too, sat through yesterday’s debate, and that seemed to be what was being said. The Brexit Secretary himself said that there will have to be some sort of checks, which is inevitable. If we are to diverge from the current rules and Northern Ireland is to remain within them, there will have to be checks. It is no wonder that the people of Northern Ireland are concerned about the potential impact on their place within this United Kingdom.

Businesses in Bristol West have already told me of their anxieties, as I said, but they had a right not to expect there to be border checks within the UK. Northern Ireland’s place is enshrined in the Good Friday/Belfast agreement, but this is not just about trade—that is why I mentioned the agreement. This is about people. It is about values. It is about hopes and fears for the future, and it is about the feeling of belonging. It is about relationships between and within communities.

There is a perception among some in Northern Ireland, as hon. Members have mentioned, that a border nobody voted for will be created within the United Kingdom down the Irish sea. A border in the Irish sea does not bring people together, as the Good Friday/Belfast agreement does; it divides people and pulls them apart.

Amendment 1 seeks to give the Government a way of renewing their commitment to the Good Friday/Belfast agreement by showing that they still believe in the Union—the full Union of the United Kingdom of Great Britain and Northern Ireland. The amendment would require them to report openly and transparently on the implications of the protocol for the movement of goods between Northern Ireland and Great Britain and vice versa, for the Northern Ireland economy, for the fiscal and regulatory compliance of goods travelling between Northern Ireland and Great Britain, and for barriers to trade for third-country goods entering Northern Ireland and Great Britain from the rest of the EU and third countries.

Amendment 1 would require the Secretary of State to publish a report and lay it before both Houses of Parliament and each devolved legislature, and to provide for debate and proper scrutiny in both Houses. The first report should appear before 31 October. I can see no problem with that. If there is no problem, as the right hon. Member for Old Bexley and Sidcup says, what is the problem with transparency? It would not take the Government very long to do that reporting, and our constituents and the people of Northern Ireland have a right to expect such transparency.

If the Government do not support amendment 1, I can only ask them to respond. Do they feel they owe it to the people of Northern Ireland to report sufficiently on the commitment they made earlier in this process to avoid a hard border? What is it about transparency and accountability to the people of the whole United Kingdom to which they object?

[Sir Jeffrey M. Donaldson]

On transparency and reporting, it is important that Northern Ireland is represented on the proposed Joint Committee on the Northern Ireland protocol so that we have a direct input into how the arrangements are enacted.

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[Thangam Debbonaire]

That sounds like an eminently sensible idea.

The Opposition support the cross-party amendment, new clause 55, and I will come on to the other clauses. The Labour party has consistently proposed a solution to the possibility of Brexit causing a border either on the island of Ireland or in the Irish sea, and our customs union proposal would prevent both. There will be a chance to discuss that proposal later today, and the Government will have a chance to consider it. In the meantime, I ask them to consider amendment 1.

Clause 37 is an astonishing breach of faith with some of the most vulnerable children in the world. Our amendment 4, which we will push to a vote, seeks to restore that faith. My right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) and the noble Lord Dubs, our dear friend and colleague, have today written jointly to all Conservative Members to urge them to support amendment 4 and thereby scrap clause 37.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

The UK has already reneged on its commitment to the 480 child refugees who were due to come to the UK from France under the Dubs scheme. This withdrawal agreement is a further regression of the UK’s moral duty to help vulnerable refugee children, so does my hon. Friend agree that amendment 4 would require the UK to show that it is serious about its humanitarian obligations?

[Thangam Debbonaire]

I absolutely agree with my hon. Friend. This is about who we want to be as a country—who I believe the British people already are—and how we want to be seen. As Conservative Members will know, there is no mandate for this change. The change was not in their general election manifesto or in any statement of support for the withdrawal agreement of which I am aware, although they are welcome to contradict me. It is deeply wrong for the Government to seek to remove this provision on protecting vulnerable children just because they can.

I am sure that many Conservative Members are troubled by this, and I hope some are having words with their Whips right now. I know their constituents will be shocked by the breach of trust between the people of this country who, no matter who they voted for in December, believe that protecting vulnerable children is part of who we are as a country. Brexit or no Brexit, that is who we are.

I believe the Minister is an honourable man, and perhaps he will seek to remedy this breach of faith by not objecting to amendment 4, and thereby not put his MPs in an awkward position. We shall see.

Clause 37 removes the commitment to negotiate an agreement with the EU27 on protecting child refugees. If the Government will not back our amendment to change that, I hope they will explain it. The hon. and learned Member for Edinburgh South West (Joanna Cherry) has already outlined much of the case, and I am grateful to her for supporting our amendment and for laying out the legal detail, as I am not as capable as her of doing so.

This commitment belongs within the Bill. The Government have said otherwise, but we believe it belongs here because, as well as keeping faith with the noble Lord Dubs and others both inside and outside Parliament, the existing provisions for the protection of children would then be the basis for negotiating an agreement. We must consider the fact that the clock is ticking; we leave the EU at the end of this month and we will then have only a few months more to agree the future relationship. The regulations that currently provide the legal basis for child refugees to be reunited with adult relatives will end if we do not put any other negotiated agreement in place in that time.

Surely, there can be no right hon. or hon. Member in this place who does not respect and admire the work of our colleague and friend Lord Dubs, who, with warmth and determination, eternal optimism and good faith, has campaigned, and inspired others to campaign, for us to do more, not less, for vulnerable child refugees travelling alone and trying to get to safety. Who among us can fail to recognise his extraordinary example and his achievements? I hope that I am wrong, but it would seem that, unfortunately, the Government do not recognise them. That is certainly Lord Dubs’s view and it is mine, too, because in clause 37 they have reneged on that commitment. More importantly, they have reneged on a commitment to child refugees themselves, to secure arrangements at the earliest opportunity on how to protect children elsewhere in the EU who have an adult relative legally in the UK, either with status or in the asylum process.

Family reunion is one of those things that should not need explaining, but apparently it does: families belong together. Families who are traumatised by war, persecution and conflict are often forced to make decisions that none of us would ever want to have to make. Sometimes, in their journeys to safety, they are separated, and we should be doing everything we can to help reunite them, wherever they are, because that is part of who we are as a country. The British Red Cross and other refugee organisations have recommended that clause 37 be removed and that the provision be restored, and the Government could do just that. They have said that there is no change of policy and that it is just not appropriate for this provision to be in this Bill—the Minister is nodding. Why should it not be in this Bill? It was in the October version. The provisions end this year and I have heard no whisper of any negotiations so far with the EU about this provision, although I am happy to be corrected if the Minister knows otherwise.

In numerous reports, such as the House of Lords European Union Committee report “Brexit: refugee protection and asylum policy” and the House of Commons Foreign Affairs Committee report “Responding to irregular migration: A diplomatic route”, the importance of providing safe and legal routes to protection has been noted. They point out, for example, that policies that focus

“exclusively on closing borders will drive migrants to take more dangerous routes, and push them into the hands of criminal groups.”

They have warned:

“In the absence of robust and accessible legal routes for seeking asylum in the UK, those with a claim are left with little choice but to make dangerous journeys by land and sea.”

The Government have rightly shown concern about people setting out on those dangerous journeys, but making it harder to come by legal routes is what prompts them. The Government recognise the need—I have heard them do this—to do more to prevent desperate and vulnerable people setting out in leaky boats and taking other dangerous routes, but this recognition is hollow words if it is not followed up with the action needed to increase safe and legal routes. The Minister will know, as I have pressed on this on many occasions, in different contexts and different debates, that refugee resettlement and refugee family reunion saves lives and prevents those dangerous journeys.

Clause 37 is worse than I have set out, as not only does it fail to increase our response, but it goes backwards. It risks going backwards because we have no commitment on what will happen and it is totally unnecessary. Let me set out some things the Government could choose to do and commit to right now. They could commit that family reunion rights will be protected, with priority afforded to unaccompanied children. They could tell us they will replace the family reunion elements of Dublin III by prioritising negotiation with the EU and with key member states so that there is an agreement that allows individuals who have claimed asylum to be reunited with their family members. The Government could commit to allowing children to join extended family members in the UK who have the legal right to be here because they are in a process or they already have status.

We hope that the Government and their Back Benchers will recognise the rightness of this cause and the moral justification for it. We hope that they understand that the people of the United Kingdom will want them to do this. We hope they will also join us in paying tribute to the many community organisations, volunteers, councillors and individuals who have shown our national values, and demonstrate them daily, by protecting, and offering to protect, still more vulnerable people. We hope the Government will acknowledge that and accept our amendment.

Finally, I come to the issue of parliamentary scrutiny. An extraordinary turn of affairs has occurred between versions 1 and 2 of this Bill: the Government have totally removed the process of parliamentary scrutiny over the negotiations for the future relationship with the EU. Our new clause 1 therefore seeks to restore this scrutiny. Do we want to leave the European Union just for the Government to be able to ride roughshod over the views of the democratically elected Members of this House of Commons, on our side and on the other? Do our constituents really want us to have less say, not more, over the relationship with our nearest neighbours? Did the people we represent really go to the polls on a dark, cold, rainy and windy day in December to elect us, on this side of the House and on that, so that we can simply agree to hand over power to the Executive on this, the single most important issue of our times? Is this really what “Get Brexit done” means?

[Sir Desmond Swayne]

Throughout the proceedings yesterday the Labour Back Benches were empty. For half the time there was only one Member there—Labour’s only surviving Eurosceptic—but for most of the time there was nobody there at all and we ended up finishing early, such was Labour’s determination to provide scrutiny.

[Thangam Debbonaire]

The right hon. Gentleman is well aware that the Labour party had leadership hustings last night and that the Front-Bench team were here and fully engaged. I am talking now about the future relationship. Labour Members know, reluctantly or not—for many of us, this will be a sad moment—that on 31 January we will leave the EU. We accept that, but I am now talking about scrutiny of the future relationship. The shamefully misleading impression given by the Government that electing them in December would mean that Brexit would be “done” by the end of January and that we could move on to other matters is a terrible way to treat the people of the United Kingdom, whoever they voted for.

I am sure the Prime Minister and his entire Front-Bench team are fully aware that Brexit does not just get “done” when we leave, as we are going to and as the Opposition have acknowledged, on 31 January. I am certain that newly elected, as well as returning, Conservative Members know perfectly well that all that will happen on 31 January is that we will leave the European Union. They know that none of the agreement on the future relationship, or of the arrangements for sharing information about criminals or trading, or for co-operating on research or on moving life-saving medicines between the UK and the rest of the EU, will be “done”. That will all be still to do. The Government have set a wildly unrealistic expectation, not only that Brexit will just get “done”, but that the many aspects of the future relationship will be “done” by the end of June this year, for the transition to be over by the end of December. In doing that, the Government treat the economy, jobs, lives and welfare of the people of the UK recklessly.

Clause 33 means that the implementation period comes to an end on 31 December, in all circumstances, as Ministers said yesterday. Even if we have not worked out how people who currently work across borders in the EU can continue to do so, Ministers are prohibited by law—they will be by the end of tomorrow—from asking for an extension period. If the agreements on how we share information about terrorists and criminals, or on other important aspects of data sharing, are only days away, we will still not be allowed to ask for an extension, even one that is just for days. Even if the arrangements for the movement of medicines are not complete, there will be no extension. [Interruption.] This is related to this amendment, because we are asking for scrutiny of the process. If the Government are going to insist on this transition period coming to an end no matter what, surely we should have a right to scrutinise the process.

[Joanna Cherry]

The hon. Lady is making a powerful speech. She should ignore the jeers and concentrate on the forcefulness of the points she is making. Does she agree that the situation she has just described, whereby favourable agreements just a few days away from being negotiated would be given up in favour of this shibboleth of a certain date, is the classic definition of cutting off your nose to spite your face?

[Thangam Debbonaire]

I do agree with the hon. and learned Lady on that. I say again that that shows why we need this amendment, because it is about the scrutiny of the process. If we are to accept this ridiculous idea that there must be no extension to the transition period, even if it is for just days, at least we should have the right to scrutinise that process, on behalf of the people we were sent here to represent. This is not about whether there is good or bad faith on the part of the EU member states. I am sure that they will, as we all hope, negotiate in good faith, but there are practical implications here about the sheer volume of work to be done to reach agreements on all these vital aspects of our future relationship and secure the parliamentary approval of 27 other countries by the end of this year.

I am saddened, but no longer shocked, that the Government rejected our sensible proposal yesterday, but I hope that today they will consider our sensible proposal on scrutiny. It is not too much to ask that we, the elected representatives of the United Kingdom—of all parties, including the Government party—have the right to hear from our Ministers on the aims and objectives of the negotiations, the progress made and the outcome. It is not too much to ask that we be guaranteed that right, with the opportunity to debate and discuss, rather than having to wait for possible a ministerial statement or being forced to beg for information via an urgent question.

Surely, Government Members can see the wisdom in our proposal. They, too, were elected to represent their constituents, not just to be lobby fodder for their Prime Minister. If they have a business in their constituency on which jobs depend, and the ability to trade relies on the continuation of an agreement between the UK and the EU, do they not want to be able to ask their Government about whether that is included in the negotiating objectives and to be able to find out how that is going? If they have a constituent whose life depends on the movement of a medical device from one EU country to the UK, do they not want to be able to find out whether that is part of the negotiations and how that is going? Surely, they will want to be able to represent their constituents.

Members may not realise that the Law Society has recommended reinstating the scrutiny role. They may have forgotten that the Supreme Court judgment in the 2017 Gina Miller case made it clear that the Government cannot make or withdraw from a treaty that amounts to a major change to UK constitutional arrangements without parliamentary oversight. Or maybe this does not count. I ask all Government Members to consider pushing their Government, and I ask the Minister—I say again that I know him to be an honourable man—to consider restoring the full process of parliamentary scrutiny. I ask them to commit today to doing that. They could choose to adopt the Opposition amendment, or they could achieve it in some other way. I do not mind; I just believe that, as elected representatives, we should be able to represent the people who sent us here on the most important change to our way of life, our jobs, our businesses and our security in our lifetimes.

[The Parliamentary Under-Secretary of State for Northern Ireland (Mr Robin Walker)]

Before I address the provisions we are debating, I wish to acknowledge the enormous hard work and professionalism of officials in the Department for Exiting the European Union, in which I had the privilege to serve for more than two years, and in the territorial offices in which I have served since, in bringing this Bill and the withdrawal agreement to the position they are in today. I pay tribute to all those in the devolved Administrations and the Northern Ireland civil service who have contributed to our work on EU exit and to ensuring that the whole UK is able to leave the European Union in an orderly way. The Bill may have been a long time in coming, but it is delivering on a mandate for the whole United Kingdom. It has been a privilege to work with colleagues from every part of the United Kingdom in preparing and delivering it.

I agree with the hon. Member for Bristol West (Thangam Debbonaire) about the importance of the Good Friday Belfast agreement. It is absolutely right that it has been a central focus of the exit process from the start. We do not need amendment 1 to state our firm commitment to both the Good Friday agreement and the principle of consent, or, indeed, my party’s absolute commitment to the United Kingdom.

I shall talk briefly to the purpose of clauses 18 to 37 and schedules 3 and 5 before I go into the detail of the amendments. As a Northern Ireland Minister, I make no excuses if most of my focus in respect of the amendments is on Northern Ireland. I am sorry not to have heard from more Northern Ireland colleagues so far; I shall try to make time to ensure that I can.

First, the clauses set out how EU law will be wound down at the end of the implementation period. Secondly, they enable the UK to fulfil its international obligations under the financial settlement. Thirdly, and crucially, they implement the regulatory, customs and other arrangements contained in the Northern Ireland protocol; protect rights and arrangements contained in the Belfast Good Friday agreement; and avoid a hard border. Fourthly, they update the European Union (Withdrawal) Act 2018 so that it operates as intended in the light of the withdrawal agreement. Fifthly, they allow UK courts to interpret UK laws and not to be inadvertently bound by historic European court cases. Sixthly, they provide a mechanism for Parliament to consider EU legislation that raises a matter of vital national interests, thereby increasing parliamentary scrutiny. Seventhly, they ensure that the Government are properly accountable for their work in the withdrawal agreement Joint Committee, and that Parliament should be informed on formal dispute proceedings that arise from the withdrawal agreement. Eighthly, they guarantee that we can ratify the withdrawal agreement on 31 January by ensuring that once the Bill receives Royal Assent there are no further parliamentary hurdles to ratification. Ninthly, they repeal unnecessary or spent enactments relating to EU exit.

I shall now address the amendments—

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Parliamentary sovereignty

[Thangam Debbonaire]

I beg to move amendment 11, in clause 38, page 37, line 24, at end insert—

“and has been so during the period since the passage of the European Communities Act 1972.”

[The Second Deputy Chairman of Ways and Means (Sir Gary Streeter)]

With this it will be convenient to discuss the following:

Amendment 35, in clause 38, page 37, line 39, at end insert—

“insofar as future primary legislation may expressly repeal all or any provisions of this Act, but only to that extent.”

This amendment would ensure that existing and future primary legislation that impliedly repealed Section 7A, etc of the European Union (Withdrawal) Act 2018 would be invalid, despite the doctrine of parliamentary sovereignty.

Clauses 38 to 40 stand part.

That schedule 4 be the Fourth schedule to the Bill.

Clause 41 stand part.

That schedule 5 be the Fifth schedule to the Bill.

Amendment 9, in clause 42, page 41, line 6, leave out from “force” to end of line 6 and insert—

“only when each House of Parliament has approved a motion tabled by a Minister of the Crown considering a ministerial economic impact assessment of the commencement of this Act.”

This amendment would require the House to endorse an economic impact assessment of measures this bill would implement.

Clause 42 stand part.

New clause 28—Conditional approval subject to a confirmation referendum—

‘(1) The condition in this subsection is that a further referendum has been held on the UK’s withdrawal from the European Union in which the electorate has been offered two options—

(a) the option for the UK to leave the European Union in accordance with the withdrawal agreement and a framework for the future relationship; and

(b) the option for the UK to remain in the European Union on existing membership terms

and that the Chief Returning Officer has certified that a majority of voters has supported the option for the UK to leave the European Union in accordance with the withdrawal agreement and the framework for the future relationship.

(2) If the condition in subsection (1) has been fulfilled, then—

(a) the approval of the withdrawal agreement by the House of Commons required under section 13(1)(b) of the European Union (Withdrawal) Act 2018 is deemed to have been given;

(b) the House of Lords is deemed to have debated the motion required under section 13(1) of the European Union (Withdrawal) Act 2018;

(c) the European Union (Withdrawal Agreement) Act 2019 is, for the purposes of section 13(1)(d) of the European Union (Withdrawal) Act 2018, an Act of Parliament which contains provision for the implementation of the withdrawal agreement;

(d) the Government must ratify the withdrawal agreement within the period of three days beginning on the day after certification by the Chief Returning Officer under subsection (1); and

(e) requirements in section 20 of the Constitutional Reform and Governance Act 2010 (Treaties to be laid before Parliament before ratification) do not apply to the withdrawal agreement (but this does not affect whether that section applies to any modification of the withdrawal agreement).”

This new clause would require the Government to give the public the final say on Brexit through a people’s vote, with the choice between leaving under the terms of the withdrawal agreement and remaining in the EU.

[Thangam Debbonaire]

I rise to speak about parliamentary sovereignty. Clause 38 is a puzzle, and we have tabled our amendment 11 to tease out more of that puzzle, to try to work out what it is for and to expose some of what we on this side believe has been quite puzzling leadership on the part of those who have been peddling the idea that we are going to take back control of our laws, our money and our borders because they have somehow not been under our control for the last 40 years. I am going to stop using the phrase “take back control” in a moment, but I will first analyse it to make my point about our amendment.

We have been repeatedly told that the EU referendum was about taking back control and restoring parliamentary sovereignty. I am seeing nods from certain esteemed Government Members telling me that that is indeed what it was about. It was not about that, however. I find this most puzzling. Have we ever actually lost our parliamentary sovereignty? The answer is, of course, no. Saying that Brexit is about taking back control of our laws, our money and our borders is quite extraordinary. Let us start with laws. Have all the laws we have passed in the past 40 years been just a dream? Did we imagine all those laws? Just in the four years since I took my seat, we have passed law after law. We have put Bills through a process of scrutiny, debate and amendment.

[John Redwood]

But does the hon. Lady not understand the message of the referendum and the election? There are very large numbers of directly acting regulations that we can do nothing about, and we have had a lot of legislation going through this House directed by EU directives, which the UK was not happy with.

[Thangam Debbonaire]

I understand the difference between a law and a directive. I also understand the fact that we were perfectly capable of making our own laws during the past 40 years. Let us take an example that I am very fond of—[Interruption.] The right hon. Member for Wokingham (John Redwood) is shaking his head, but he knows perfectly well that we have passed laws. For instance, let us take one that was passed on the very last day of the last Parliament. My dear friend Stephen Pound, the former MP for Ealing North, was standing right here at the Dispatch Box making his last speech as shadow Northern Ireland Minister. He was closing for the Opposition on the final stages of the Historical Institutional Abuse (Northern Ireland) Bill, which would at last provide compensation for victims of historical child abuse. He marked that occasion with tributes to the victims, some of whom were in the Gallery, with respect for cross-party collaboration and with a heartfelt plea for the law to be implemented fully and speedily and never to be needed again. Anyone who was in the House that day, as I was, cannot fail to have been moved by his speech but also by the impact of the law, whose value to the lives of people who had suffered will continue for many years. Many of us will always remember that debate.

[John Redwood]

Nobody is disputing that we can pass laws while a member of the EU as long as the EU allows us to. It is quite simple.

[Thangam Debbonaire]

I am going to continue with my example, because this is incredibly puzzling. I do not recall such a thing at any stage in the passage of this Bill or any other Bill that I have been part of—as a Whip I have served on many a Public Bill Committee in the past four years—because at no point during the passage of the Historical Institutional Abuse (Northern Ireland) Act 2019 did anybody have to ring up the EU and ask for permission.

[Chris Grayling (Epsom and Ewell) (Con)]

Does the hon. Lady not understand how nonsensical her argument is? Of course there are laws that remain within the remit of this Parliament; but equally, many areas of government and political activity in this country are in the gift of the European Union. There are also European Union regulations that are directly applicable within the United Kingdom over which this Parliament has no control. Does she not understand that?

[Thangam Debbonaire]

Regulations that would have been discussed either in the European Parliament or the Council of Ministers, and those people are also elected and have been for decades. Members have been elected to the European Parliament since 1979. I know that, as I am sure Conservative Members do, because I have campaigned for those Members in elections.

[Sir William Cash]

The hon. Lady just referred to the Council of Ministers. Would she deny for a minute, as is well understood by everybody else, that decisions are taken in the Council of Ministers by a majority vote of other countries behind closed doors and without a transcript? They are therefore not democratic. How can she talk about people being elected when the decisions are actually taken in that manner?

[Thangam Debbonaire]

The last time I looked, most—although admittedly not all—of the Government’s Ministers were democratically elected. We participated in the creation of the rules of that Council. I am going to skip ahead in my speech and then come back again, because I wish to remind Conservative Members that it was, for instance, a Tory Government who took us into the single market, with all its rules. They rightly recognised the benefits of the shared rules of a single market. They recognised that they were worth it and that they did not compromise our sovereignty.

[Sir Desmond Swayne]

Is the hon. Lady in denial, or has she been living in a bubble? We had a referendum, and we have just had a general election that reinforced the referendum result. Whatever she may say from that Dispatch Box, that ship has sailed, as one of her colleagues said.

[Thangam Debbonaire]

I understand that we are leaving on 31 January. I understand the result of the general election. I am addressing this clause and our amendments to it, which is entirely proper and entirely in keeping with the rules of Parliament and the Standing Orders and is actually what sovereignty is supposed to be about. Is not parliamentary sovereignty supposed to be about elected right hon. and hon. Members holding the Executive to account?

[Patrick Grady (Glasgow North) (SNP)]

Many folk on the Government side of the House will be terribly disappointed when this all comes to an end and their hobby-horse of the past 40 years disappears. The real loss of sovereignty and the real power grab is the amount of power being handed to mandarins in Whitehall and Cabinet Ministers here to pass Executive decisions without scrutiny in this House of Commons.

[Thangam Debbonaire]

Indeed. I find it most puzzling that Conservative Members who argued for a so-called return to parliamentary sovereignty in this country are quite happy to nod through a Bill that wipes away parliamentary scrutiny of the process of negotiating the future relationship. It is quite extraordinary.

I remind Conservative Members that it was under a Tory-led coalition Government that section 18 of the European Union Act 2011 clarified that limits on sovereignty are at Parliament’s own behest and can, if explicitly provided for, be revoked. The right hon. and hon. Gentlemen who have intervened were presumably here at that time. I was not, but I have read the text and I know what it says. The Government’s own 2017 White Paper said

“Parliament has remained sovereign throughout our membership of the EU”,

and I watch with interest to see whether a Minister will go back on that.

[Chris Grayling]

Does the hon. Lady not understand that it has always been in the gift of Parliament to repeal the Act that took us into the European Union and to take us out of all European laws in their entirety? It has never been in the gift of Parliament, as long as we are subject to the rules of membership, to reject an individual agreed EU measure. That is the difference.

[Thangam Debbonaire]

This is quite extraordinary because, again, the right hon. Gentleman seems to have forgotten that there was a referendum in which the British people chose to be in the European Union, and they have voted for Members of the European Parliament over the course of four decades. I have acknowledged that the result of the 2016 European Union referendum is going to happen on 31 January, but we are arguing here about a clause that is in the Bill, and it is entirely proper for the Opposition to propose an amendment to try to probe what on earth it means.

Did I imagine that we considered the Northern Ireland historical abuse Bill? I checked Hansard this morning and it appears that I was not dreaming—I was actually there. I did not dream the passage of the world’s first Climate Change Act in 2008. Nobody had to ring Brussels to ask, “Can we pass this law?” or if we could equalise marriage. We have been passing our own laws all this time. We have never needed to ask for permission. It is not true that we have no say on EU rules; we have had democratically elected representation in the EU Parliament since 1979.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

The hon. Lady has made two points that I think are incorrect. First, the British people voted to join something where we had a full veto over anything that we did not agree could be imposed on the UK. Secondly, on judicial activism and the mission creep of the European Court of Justice, perhaps the hon. Lady would like to comment on the way in which power was grabbed through two court cases—namely, those of Van Gend en Loos and of Costa v. ENEL.

[Thangam Debbonaire]

One of the things that interests me about the right hon. Gentleman’s argument is what we will do when we are trying to resolve a dispute over a trade agreement at a supranational court—[Interruption.] They will not be elected representatives. The World Trade Organisation court of dispute does not consist of elected representatives. Government Members seem quite happy to hand over control to the WTO court of dispute resolution and pretend that that is somehow more democratic. [Interruption.] Calling me silly is not worthy of the right hon. Gentleman.

We have been sovereign all this time. On our money, we have always had our sovereignty. We set our own budgets. We are represented at EU budget setting by our democratically elected representatives. As I have said, we have even had opt-outs, negotiated by Tory Governments, from some of those financial agreements. We have negotiated opt-outs, variations, rebates and all sorts of specific conditions for the UK.

The phrase used is “money, laws and borders” and I cannot remember which way around they are, but on borders we chose, rightly or wrongly—and we can decide for ourselves whether it was right or wrong—how we interpreted the requirements on the free movement of people, one of the four freedoms of the single market, which, I remind hon. Members, a Tory Government took us into. Other EU nations have interpreted that freedom differently. We chose, as a sovereign nation, not to participate in the Schengen area. We decide how we police our borders and whether or not there are enough border police.

We have also chosen to benefit from freedom of movement, which I acknowledge will end after 31 January. It is a freedom that I wish we had valued more and whose passing I will truly mourn, but it never undermined our sovereignty. That is implied even in the wording of the clause, because it states that “sovereignty subsists notwithstanding” various provisions. Of course, we agree—and will continue to agree after debate, scrutiny and amendment—to many other rules beyond our borders. International treaties, trade agreements and security co-operation arrangements all carry commitments to shared rules and to abiding by the rules of supranational bodies of dispute resolution, most of which are not elected, but Parliament’s sovereignty will remain intact.

I ask the Minister respectfully if he will explain the legal and practical purpose of clause 38. Even the phrase, “It is recognised”, has the feel of a political rather than a legal statement. The purpose of the Opposition’s amendment 11 is to discover the Government’s intention. We think that stating that Parliament is sovereign

“and has been so during the period since the passage of the European Communities Act 1972”

is entirely consistent with what the Government themselves said in their White Paper only a few months ago. We have been sovereign all that time.

I am sure that Members know this, but our sovereignty was never in doubt and was not diminished. I could spend a long time asking what this non-argument about sovereignty has all been about, but I am pretty sure that a lot of it—perhaps most of it—has been a false argument to distract attention from the desire to deregulate this country and turn us into a bargain basement nation with no attention given to workers’ rights, environmental protections, health and safety or any of the other regulations in which we played a part in Europe, which we have implemented and which have helped us help the people we represent. I would like the Government to explain the point of clause 38.

[The Parliamentary Under-Secretary of State for Exiting the European Union (James Duddridge)]

Parliament is sovereign, was sovereign and will be sovereign, and the clause recognises that fundamental principle in our constitutional arrangement, which is of great significance to many hon. Members. Membership of the European Union has felt as though we have ceded control. We cannot pull back sovereignty piece by piece—Conservative Back Benchers mentioned a number of examples. Anybody who has sat on a delegated legislation Committee will have been told by the Minister, “We cannot change this because it has gone through the European processes and we have to rubber stamp it.” The presumption was that we were full members, and that was made worse by qualified majority voting; previously, we had the ability to come back to each individual matter.

--- Later in debate ---

[Patrick Grady]

I have enjoyed sitting here for the past couple of hours watching the Maastricht rebels’ farewell reunion tour, although it appears that they are getting some young recruits. Fair play to them; they have been trying for 40 years and think that they will achieve what they have always wanted. I feel slightly sorry for them because I do not know what they will do after 31 January.

We heard all the greatest hits: “Supreme lawmaking body,” “Brussels bureaucrats,” “Common Market,” “No taxation without representation,” and of course the platinum hit, “Parliamentary sovereignty,” which has been enshrined in the Bill for absolutely no reason at all, as was said by the hon. Member for Bristol West (Thangam Debbonaire) and my hon. Friend the Member for Central Ayrshire (Dr Whitford).

As the hon. Member for Witney (Robert Courts) touched on, as far as the UK constitution is concerned, Parliament has shared and will continue to share its sovereignty. The devolution settlement effectively did that by recognising the desire of the people of Scotland, Wales and Northern Ireland and other regional Assemblies. Power has been devolved from this place, and are we not all grateful for that? The notion of restoring parliamentary sovereignty is completely unnecessary and is a total showpiece in the Bill. Power has always been shared across the European Union and across the United Kingdom.

The right hon. Member for Wokingham (John Redwood) appears to be a reborn federalist. Perhaps that could be a new solo career now that the band is coming to the end of its tour. I will happily join him in further devolution and the assertion of federalism across the United Kingdom, if that is what he wants to do. He should be worried, however, because parliamentary sovereignty is not being restored by the clause or the Bill as a whole.

In fact, the Bill represents a power grab, first from the devolved Assemblies, by taking back the right to legislate without their consent. The Bill is an example of that. As we speak, the Scottish Parliament is withholding its consent for the Bill, but this House will ride roughshod over it tonight and tomorrow. This is also a power grab by the Executive, because sweeping Henry VIII powers are included in the Bill and in accompanying Brexit legislation that has already been passed.

The Brussels bureaucrats—that favourite hit of the Maastricht rebels—are being replaced by the new one-hit wonder of the Whitehall mandarins, except it will be one hit for the rest of time if this Parliament does not stand in the way of what the Executive are trying to do.

In fact, we are not restoring anything great here. I would be interested in an answer from the Minister at some point on whether the European Statutory Instruments Committee will be reconvened in this Parliament. It was one of the achievements of the European Union (Withdrawal) Act 2018 to enshrine that Committee in statute for the lifetime of the previous Parliament, so let us see the Committee come back if scrutiny and sovereignty are so important to this Government.

This place will be diminished in its powers and sovereignty, and in due course, it will be reduced in its numbers because 59 Scottish MPs will not be sitting here anymore when Scotland’s power and sovereignty are restored to its Parliament, which will be very happy to share them with its continental neighbours as a member of the European Union.

[Thangam Debbonaire]

As the Minister cleverly spotted, amendment 11 is a probing amendment. We have explored the concept of sovereignty extensively, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 38 to 40 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 41 ordered to stand part of the Bill.

Schedule 5 agreed to.

Clause 42 ordered to stand part of the Bill.



New Clause 2

Protecting workers’ rights

‘(1) It shall be an objective of the Government to secure an agreement with the European Union that achieves the following outcomes—

(a) that the United Kingdom will not introduce any measure which would have the effect of reducing in any way the protection provided by any Retained EU Worker Rights after IP completion day;

(b) that the United Kingdom shall take all steps necessary to ensure that, from exit day, all Retained EU Worker Rights will continue to have at least the same level of protection in the United Kingdom as is applicable in other Member States;

(c) that where, after IP completion day, the European Union brings into force or effect any New EU Workers’ Rights, the result and legal consequences in the United Kingdom of those New EU Workers’ Rights shall be the same as if those New EU Workers’ Rights had been Workers’ Rights brought into force and effect by the European Union before IP completion day;

(d) that those parts of the Treaties which, before IP completion day, provide for any matter concerning the interpretation of Workers Rights in any part of the United Kingdom to be determined by the Court of Justice of the European Union shall continue to apply to the United Kingdom or such part of the United Kingdom to the same extent after IP completion day;

(e) that after IP completion day, the procedural rules, including limitation periods, rules of courts and tribunals and remedies, governing actions for safeguarding New EU Workers’ Rights and Retained EU Worker Rights in the United Kingdom shall continue to be no less favourable than the procedural rules governing similar actions under United Kingdom law;

(f) that nothing in this clause shall prevent the United Kingdom from introducing amendments to Workers’ Rights for the purpose of making such provisions more favourable to the protection of workers;

(g) that the terms at (a) to (f) shall have direct effect and shall be recognised and available in law and be capable of enforcement by individuals and their trade unions in courts and tribunal.

(2) Subsections (3) and (4) cease to apply if the Government has secured an agreement with the European Union that achieves the objective in subsection (1).

(3) A Minister of the Crown must make an oral statement to the House of Commons on the objective in subsection (1)—

(a) within three months of this Act coming into force;

(b) at least as frequently as every 28 days thereafter.

(4) Each statement made under subsection (3) must set out—

(a) the steps taken by the Government, and the progress made in negotiations with the European Union, for the purpose of achieving the objective in subsection (1); and

(b) whether in the Minister’s opinion an agreement with the European Union achieving the objective of subsection (1) is likely to be achieved by IP completion day and, if not, setting out the reasons for this.

(5) For the purpose of this section—

“New EU Worker Right” means any Workers’ Rights—

(a) which Member States are obliged to confer by an EU directive published in the Official Journal of the European Union on or after IP completion day; or

(b) that are conferred by an EU regulation or other instrument published in the Official Journal of the European Union on or after IP completion day; or

(c) that arise out of a judgment of the Court of Justice of the European Union on or after IP completion day;

and shall include any improvement to a Workers’ Right which existed before IP completion day;

“Retained EU Worker Rights” means Workers’ Rights which—

(a) immediately before IP completion day, the United Kingdom was obliged to confer by virtue of the Treaties and the EU directives listed in Schedule 1, or which were, without further enactment, given legal effect in the United Kingdom; and

(b) on IP completion day, continued to have effect in any part of the United Kingdom;

“Workers’ Rights” means rights of individuals, classes of individuals and their trade unions, in all areas of labour protection including—

(a) fundamental rights at work, including all forms of discrimination;

(b) fair working conditions and employment standards;

(c) information and consultation rights;

(d) restructuring of undertakings and acquired rights; and

(e) health and safety at work.

“Exit day” shall have the same meaning as in the European Union (Withdrawal) Act 2018.

“IP completion day” shall have the same meaning as in the European Union (Withdrawal Agreement) Act 2020.”—(Nick Thomas-Symonds.)

This new clause would require the Government to negotiate a comprehensive agreement with the EU protecting workers’ rights.

Brought up, and read the First time.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I beg to move, That the clause be read a Second time.

European Union (Withdrawal Agreement) Bill

Thangam Debbonaire Excerpts

3rd reading & 3rd reading: House of Commons
Thursday 9th January 2020 Commons Chamber

[Thangam Debbonaire (Bristol West) (Lab)]

Madam Deputy Speaker, my congratulations on your election to your new post—a historic appointment—and welcome back.

First, I will say that we in Her Majesty’s official Opposition will be abstaining on the SNP amendment tonight, because while we are sympathetic to its aims, our objections to this Bill are far wider. We object to so much in this Bill that we cannot confine ourselves to voting just for the reasoned amendment. We will be focused entirely on voting against the entire Bill on Third Reading—and no, that is not voting against Brexit; it is voting against this Bill.

[Hon. Members]

Oh, yes it is!

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order.

[Thangam Debbonaire]

Some hon. Members appear to think we are still in the Christmas pantomime season; we are not. Just saying that does not make it clever and does not make it right. All the Conservative Members who think they are about to vote to get Brexit done must know what lies ahead. They know—they must know—that trade negotiations take time. They must know that even if we are in alignment now, the Government’s stated intention is to diverge. So be in no doubt: trade negotiations will take longer than the precious few months that the Government have allowed. Getting them done at historic speed does not look very likely when the EU itself has already warned that it will take longer than that.

Whoever’s responsibility this is, the Government with this Bill—clause 33—have boxed themselves in so there is absolutely no get-out. As my hon. Friend the Member for Sheffield Central (Paul Blomfield) has said, clause 33 is a gimmick, but it is a gimmick at the expense of the people of the United Kingdom. At the end of this year, if we are just days away from agreeing a trade deal or a few weeks away from sorting out the arrangements for moving medical devices or airline parts between the EU and the United Kingdom, it will make no difference: this Bill has bound the Government’s own hands. There will be no extension, and that is why we call it a cliff edge.

We did not need to be here. This Opposition have accepted that Brexit is happening on 31 January. [Hon. Members: “Hurrah!”] Triumphalism is not terribly seemly in this circumstance. We also did not need to be in a position where we are letting down child refugees. Let it be on record that the Opposition stood up for child refugees. We stood up for child refugees in trying to hold the Government to their own commitment to Lord Alf Dubs. They have no mandate for doing this. It is mean-spirited and morally as well as politically unjustified. I hope in the other place that their lordships will restore our amendment, which is actually about restoring the Government’s own commitment that the Prime Minister himself agreed should be in the previous version of this withdrawal agreement Bill. I hope they will restore it, and that we will stand up for child refugees in that House and in this.

I come to the maiden speeches. My hon. Friend the Member for Putney (Fleur Anderson) showed the people of Putney that they made an excellent choice. She clearly already knows and loves her constituency and understands the lives and values of her constituents. She has already been a strong voice for them this afternoon. She covered an enormous amount in her first speech, and I salute her ability to do that with clarity and great voice. I am already delighted to have her as a colleague, and I look forward to working with her. The hon. Member for Ruislip, Northwood and Pinner (David Simmonds) also made his maiden speech, and I congratulate him as he also showed his care for his constituency and his clear commitment to represent his constituents and their values in this place.

To the Government and to the Prime Minister, the Opposition say: this is now on them. Despite the lack of provision for scrutiny in this Bill, we will still use every tool we can to scrutinise the progress of the negotiations on the future relationship. Obviously, Conservative Members believe this is a great future. If that is a great future, I will happily stand here and be corrected.

[Several hon. Members rose—]

[Thangam Debbonaire]

No, I will not give way.

If, however, trade negotiations do not get concluded with record speed over the next few weeks and months, we will be holding this Government to account. We will expose the consequences to the people we were sent here to represent. We will expose the Government’s actions. We will use every tool that we have in order to do that. We owe it to the people of the United Kingdom to show them that we stood up for them today and every day, so we will vote against this Bill tonight.

European Union (Withdrawal Agreement) Bill

Thangam Debbonaire Excerpts

Consideration of Lords amendments & Ping Pong: House of Commons & Ping Pong
Wednesday 22nd January 2020 Commons Chamber

[Steve Barclay]

I was trying to be generous in taking interventions, but I will take your direction, Mr Speaker.

We very much respect the devolved Governments’ opposition to Brexit as a whole, but the legislative consent process should not be the place to show such disagreements; rather, it is for voicing concerns with parts of legislation that relate to devolved competences. The refusal of legislative consent in no way affects the Sewel convention or the Government’s dedication to it. However, as recognised by both Mike Russell and Lord Sewel, these are not normal times. Given those circumstances, I urge Members to reject this amendment.

We have covered significant ground in debating this Bill. Once passed, it will stand as an historic piece of legislation. I therefore hope that the House will respectfully disagree with their lordships’ amendments.

[Thangam Debbonaire (Bristol West) (Lab)]

I rise on behalf of the Opposition to explain why we oppose the Government on all five of their motions to disagree with their lordships.

On EU citizens’ rights, their lordships passed an amendment providing for, first, a declaratory system for gaining settled status and, secondly, for a physical document. The declaratory system would honour the previous Government’s pledges to EU citizens living here before we leave the EU that they would enjoy the exact same rights as before—we are just asking this Government to honour that. It would avoid the cliff edge of time limits—the grace period still means that there is a time limit—and pressures on people who have the legal right to be here but who, for various reasons, are being asked for yet more evidence or have only been given pre-settled and not yet settled status.

The Government talk of the 2.5 million people who have been granted status, but many of those who have applied for settled status and are entitled to it have been granted only pre-settled status, which does not give that promised certainty. Many people are not aware that they need to apply, particularly those who have been here since childhood. Others may not apply in time, for many good reasons. The Secretary of State says that late applications for good reasons will be considered, but we do not really know what good reasons will count. That does not give certainty.

The Minister in the other place argued that declaratory registration is not necessary because the current scheme addresses all problems, but it does not. The arbitrary time limit and the problems and delays in securing status all risk making some people who should be lawfully resident unlawfully resident past the time limit.

The physical document—the other part of the amendment—is vital. Surely we in this Chamber all know that internet signals are not reliable. People do not all have smartphones. Other categories of non-UK citizens have a physical document, so it is not surprising that the Residential Landlords Association say that it is deeply concerned about the lack of physical proof and that landlords are not, and should not be treated as, border police. In a perverse justification of the policy, Ministers have said that providing a physical document, as this amendment proposes, would make a future Windrush-style scandal more likely. On our understanding, it is the exact opposite.

[Stephen Doughty]

My hon. Friend is making an absolutely crucial point. That is very much what we heard in evidence from experts at the Home Affairs Committee during the Windrush inquiry in the last Parliament. They talked about the importance of physical documents and the declaratory system issue.

[Thangam Debbonaire]

My hon. Friend makes exactly the right point. Government Members should consider that the Joint Council for the Welfare of Immigrants, the3million and the Residential Landlords Association have all warned that there is a risk that landlords and employers will be reluctant, without that immediate physical proof that other Windrush citizens lacked, to let a home or offer a job to EU citizens.

[Jamie Stone]

The shadow Minister has referred to poor communications. As I have mentioned many times in this place, they are very bad indeed in my constituency. Broadband is at best indifferent. I suggest to the House therefore that many EU citizens are being disadvantaged when trying to get into the system at all because of where they live.

[Thangam Debbonaire]

Yes, the hon. Gentleman is absolutely right.

[Hilary Benn (Leeds Central) (Lab)]

My hon. Friend will be aware that the Brexit Select Committee in its former incarnation recommended a physical document. Many Members will have had this experience: constituents apply for further leave; employers say, “Prove you have leave”; they are told by the Home Office, “Apply to the checking service”; lots of employers refuse to do that, and as a result our constituents lose their jobs. Is that not precisely the kind of reason we need a physical document?

[Thangam Debbonaire]

My right hon. Friend is exactly right. I ask Government Members to imagine a future constituency surgery in which they are asked to explain to their constituents who are EU citizens why they have been denied a physical document or settled status or have experienced delays in getting that status changed, and have thus been refused a job or a home—because their MP refused to back this amendment. Their constituents will ask, “Why did you vote this way?” and they will need a good answer.

[Stewart Hosie (Dundee East) (SNP)]

The hon. Lady will have heard the Minister say that online status is more secure, but someone with leave to remain or who is here on a spouse visa gets a physical residents’ permit. If online status were more secure, the Government would have done away with that, but they have not. Is that not the point? The Minister’s point about security is no justification for opposing Lords amendment 1.

[Thangam Debbonaire]

That is spot on. It is why many EU citizens in my constituency say they feel singled out—because they do not have what other non-UK citizens have, which is a physical document.

I turn to the CJEU and Lords amendments 2 and 3. In clause 26, the Government signal their intention to create chaos and uncertainty in our legal system. I can do no better than quote from the noble Lord Pannick, who said he supported the amendment for the following reason:

“Clause 26 is fundamentally objectionable, because it would give the Minister a delegated power to decide which courts should be able to depart from judgments of the Court of Justice and what test those courts should apply.”

He went on:

“These are powers which step well over the important boundary between the Executive and the judiciary. They are matters which should not be decided by Ministers.”

Later he said—and he was absolutely right—that

“once they are conferred the political and legal constraints if they decide to act unreasonably are limited.”—[Official Report, House of Lords, 20 January 2020; Vol. 801, c. 984.]

The Government ask us to trust that they will not go beyond existing constraints, but that is not good enough. Clause 26 would lead to different interpretations of the law in higher and lower courts, greater uncertainty and therefore more litigation. That cannot be what the Government want. Amendment 2 therefore simply deletes the entire provision.

Amendment 3 was a compromise proposed by a Conservative former Lord Chancellor, Lord Mackay—surely a man whom Government Members would want to listen to. He tried to find a compromise whereby the ministerial right to make regulations would be removed. Instead, any court could consider the possibility of departing from case law but would have to set out its reasons and refer the case to a higher court. What on earth could be the problem with that?

[Geraint Davies (Swansea West) (Lab/Co-op)]

Surely my hon. Friend accepts that ultimately the test of when courts can diverge from EU law should be set in this Parliament and applied by our courts and that, if there is any question, it should be referred to the Supreme Court. That would maintain the division between Parliament and the courts.

[Thangam Debbonaire]

The problem is that we are allowing Ministers to set the terms and test, which is an unacceptable breach of the boundaries between the Executive and the judiciary.

The Government have had plenty of time to consider the provisions of the European Union (Withdrawal) Act 2018. If they want more time, just giving Ministers broad and sweeping powers is not the answer. They could, if they wanted, bring a short Bill before Parliament with proposed amendments that we could debate and scrutinise in the usual way. Every Government Member must understand—it seems that several possibly do, although they are no longer in their places—that if they pass the Government’s motions to disagree with amendments 2 and 3, the separation of powers will be blurred, there will be legal chaos and it will be impossible for Parliament to change. These are not powers that should be exercised through regulation. We should not risk ministerial interference in judicial processes. The Government should think again and withdraw their motions to disagree. If they do not, we will vote against them.

Thirdly, I turn to child refugees and Lords amendment 4, to leave out clause 37, which amends clause 17 of the 2018 Act and thus removes the obligation on the Government to negotiate future arrangements to protect unaccompanied child refugees. This is such a modest provision—it also reflects the Government’s own commitment—that it seems extraordinary and inexplicable that they are removing it. I have very dark and deep suspicions about why, though I want to be charitable and I am hoping there may be a good answer.

As Lord Dubs said, it is partly the scattergun of justifications that leads one to be suspicious. He was asked by Ministers to trust them, and he very generously said that as individuals he did trust them but that he did not trust them as a Government—because their predecessor Government had form on this. They promised to take 3,000 children on the Dubs scheme, as originally committed to, but took fewer than 500 in the end. The Government have boasted, as the Secretary of State has just done, about the number of children given refuge in this country, but have ignored the fact that most could not and did not come by the safe or legal routes that currently exist, even when entitled to them under the current law. They were often trafficked or took dangerous journeys in order to reach their family members, because they felt they had no other choice. We are talking about reuniting families, but removing the already restrictive access to safe and legal routes does not decrease the risk of trafficking; it increases the risk.

[Stephen Kinnock (Aberavon) (Lab)]

My hon. Friend is making an excellent statement. Does she think that the phrase “global Britain” means we stop supporting and giving sanctuary to some of the most vulnerable people in the world? [Interruption.]

[Thangam Debbonaire]

Of course not—hon. Members on the Government Benches seem to agree with my hon. Friend—but if so why remove the provision? Why not keep it in?

The Government say there is no change of policy, but the removal of clause 17 is a change of policy. They complain that leaving the provision in will act as a pull factor, but that rather indicates that what they want is a change of policy. They tell us that this is not the right Bill for the provision and that it should be in the immigration Bill, but clause 17 is context and time-specific: it directs the Government to a negotiating objective during the very time limited period—a matter of months—that they now have to agree the future relationship. As the Secretary of State has said, we cannot bind our neighbours to our national law, so that is not a valid argument against putting any other commitment in any other law. This provision only commits the Government to a negotiating aim. They say it can be done through rules, but a negotiating aim cannot be pursued through immigration rules. So which is it—is it law, is it rules, is it an aim, or is it no change at all, as they have also claimed?

The Government have said the provision would bind their hands in negotiations but then became offended at the accusation that they were using children as a bargaining chip. Again, which is it? Are children a limit on the negotiations or not? They have also justified their argument on the grounds of the election manifesto, but the only words in that manifesto were:

“we will continue to grant asylum and support to refugees fleeing persecution”.

There is not a word in that manifesto that implies this change of policy—and it is a change of policy—on child refugees. Just saying that it is not a change does not make it so. If it is not a change of policy, why does the provision need to be removed?

[Mr Peter Bone (Wellingborough) (Con)]

The shadow Minister brings up a hugely important area. As a former chairman of the all-party group on human trafficking and modern slavery, I consider it a very important issue. I hope the Government will commit to coming back to us, but separate from the Bill. I accept their argument that this Bill is the wrong place for this provision. It is much more important elsewhere.

[Thangam Debbonaire]

I thank the hon. Gentleman for that point and for his partial agreement—I think—but if it is not acceptable in this Bill, why would it be acceptable in another? It is a negotiating aim, and we are told by the Secretary of State that the negotiations have already started.

To my understanding, all that has happened is that the Home Secretary has written a letter. I think that was in November. We have not yet heard what reply there has been or about any negotiations. I do not want to believe that the Government think so little of our country that they are pulling back from protection for the very small number of children that this clause originally covered. I hope that we as a country are secure enough in ourselves to be generous to those fleeing persecution. I ask Government Members to consider that this motion demonstrates a lack of compassion. The Government’s reasons are contradictory and there are no justifications in the manifesto for removing this very modest, limited but necessary provision to protect some of the most vulnerable children we can imagine.

[Alison Thewliss (Glasgow Central) (SNP)]

Many of my constituents have been in touch with me, including Kirsty, who told me that her granddad was forced out of Czechoslovakia as a child after world war two and came to the UK as a refugee, where he was reunited with his parents. Many of my constituents have experience of that family reunion, and they, too, do not understand why the Government would want to row back on it. Does the hon. Lady agree that the Government really must change their mind?

[Thangam Debbonaire]

I thank the hon. Lady for that intervention. It is clearly important to put on the record again that we are talking about reuniting children with an adult relative who is here legally. We are not talking about people who have no right to be here; we are talking about protecting the requirement to negotiate that. We really, really ask the Government to think again, and if they do not, we will vote against the motion.

[Alison McGovern (Wirral South) (Lab)]

May I add, very briefly, to what my hon. Friend has said about family relationships? We also want the Government to stick to the principle that this should be an adult to whom the child is related, not just a parent.

[Thangam Debbonaire]

My hon. Friend is absolutely right. I do want the Government to stick to that commitment. For the Government to ask us simply to trust them because it will pop up in another bit of legislation is just not good enough.

Let me finally deal with Lords amendment 5, which relates to devolution. This will be the shortest part of my speech. The Sewel convention provides that when Parliament wants to legislate on a devolved matter, it will not normally do so without the relevant devolved institution being properly consulted. All we want to do is ensure that that happens. Our devolved nations need to know that Government assertions about UK sovereignty in clause 38 are properly and legally tempered by respect for the law, conventions, and practices on devolution. That seems completely reasonable to us.

[Wayne David]

Does my hon. Friend agree that despite what the Government are saying, the impression is being given that they wish to undermine the Sewel convention through their act of opposing this amendment?

[Thangam Debbonaire]

That is indeed the impression that seems to be being given. I suggest that Conservative Members, particularly those who are newly elected and represent constituencies in Scotland and Wales, should ask themselves whether this is what they told their voters back in November. Did they tell them that they would be voting against respecting devolution? Is that what they said to their constituents?

[Jonathan Edwards (Carmarthen East and Dinefwr) (PC)]

The hon. Lady will, of course, be aware that the Northern Ireland Assembly, the Welsh Senedd and the Scottish Parliament have refused consent. What does it say about the so-called partnership of equals if the three devolved Parliaments are completely ignored by the British Government?

--- Later in debate ---

[Thangam Debbonaire]

I think what it says is that the Government will consult, but they are not listening. I think it mighty suspicious that the refusal to respect the amendment comes after those devolved legislatures said that they did not consent.

[Wera Hobhouse (Bath) (LD)]

The Government talk so much about democracy during election campaigns, but is it not time they accepted that listening to our devolved communities is very much part of democracy? They cannot just go out and talk about democracy and forget that.

[Thangam Debbonaire]

The hon. Lady is quite right. That is one of the problems that we had during the previous iteration of the Bill, and even more in the case of this one.

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

Will the hon. Lady give way?

[Thangam Debbonaire]

I will give way once more, and then I must finish.

[Sir Bernard Jenkin]

I am the first to acknowledge that the hasty publication of the original European Union (Withdrawal) Bill, including clause 11, left a scar because of the lack of consultation, but the Sewel convention remains on the statute book. It is not being deleted. We do not repeat everything important in every Act simply to re-emphasise it. That is a kind of virtue signalling that it is not necessary to include in this legislation.

[Thangam Debbonaire]

If the hon. Gentleman thinks that the convention is already law and we should respect that, why not just accept the amendment? Clause 38, which it seeks to amend, makes the somewhat obvious statement that this Parliament is sovereign. Why does that need to be in the Bill? I should like the Secretary of State at some point to make a commitment, on the record, that the Government will not introduce legislation on devolved matters without proper consultation.

This was a bad Bill in October, and it is a worse Bill now. Amending it is not stopping Brexit; it is about the future, and our long-term relationship with our neighbours. Scrutinising and amending legislation and holding the Government to account—it seems odd that I have to remind the Government of this—is exactly what we are supposed to do in both Houses.

Again I ask Conservative Members, especially those who are newly elected, whether they really think that this is what their voters wanted. Their voters may well have voted for Brexit—the Opposition accept that—but did they vote for the Government to break trust with the country on child refugees? Did they vote for the separation of powers between the judiciary and the Executive to be blurred? Did they ask for Ministers to be given more ability to interfere with the independence of the courts? Did they really vote to treat people who have been here legally for years, who have the legal right to be here, who have families and jobs and live here, to be treated differently, as second-class citizens? Did they vote for central Government to be able to impose their will on the devolved legislatures?