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?