European Union (Withdrawal) Bill

Baroness Hamwee Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, if I appear faint in my defence of the Bill it is due to a lack of food rather than a lack of enthusiasm. I am grateful for the opportunity to respond to this important debate and set out the Government’s position. I will start by making it clear that we are listening carefully to the debates on this issue, and will continue to do so.

The Government agree that protecting our rights and liberties as we leave the EU is of critical importance and it is only right that every detail of our approach is scrutinised. This has been a wide-ranging debate about human rights after exit, but it is worth remembering that the amendments before us relate specifically to the charter and the question of what role, if any, it should have in domestic law when we are no longer a member of the EU.

I maintain that the approach in the Bill to the charter as a document is absolutely right, and that the Bill in this respect is in no need of improvement. However, as many noble Lords have pointed out, that approach cannot be separated from the Bill’s approach to the general principles of EU law, including fundamental rights. In response to the strength of feeling conveyed not just in this House but in the other place, the Government are looking again at these issues. These are highly technical issues in some respects but they are undoubtedly important, so we will look further at whether this part of the Bill can be improved in keeping with some of the concerns that have been expressed. Indeed, my noble friend Lord Lamont referred to an observation made by the Secretary of State himself that, if there were specific examples of rights which were not otherwise covered, we would examine them to ensure that the rights were not lost. However, that is not the case. On the specific question of whether the charter should be kept, our view remains that not incorporating the charter into UK law should not in itself affect the substantive rights from which individuals already benefit in the United Kingdom. This is because the charter was never the source of those rights.

The noble and learned Lord, Lord Goldsmith, anticipated that he might be reminded of his previous remarks on the matter, and I see no reason to disappoint him. In 2008, when this House debated the then European Union (Amendment) Bill, he was absolutely clear that,

“the charter was never intended to be applied directly to member states in dealing with those matters that member states have the competence to deal with. It was always intended to constrain the European Union institutions … the United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts. Moreover, in many cases the charter rights are based on national laws and practices and so they must mirror the extent and content of those national”,—[Official Report, 9/6/08; cols. 426-27.]

laws.

The noble and learned Lord observed that he had nevertheless then encountered the incorporation of the charter into the Lisbon treaty in 2009. Perhaps that was a game changer. I remind him of his evidence to the European Scrutiny Committee in 2014. At that time he referred back to his previous statements and publications with regard to the charter and went on to say that, as he had there explained, the fundamental point was to provide a clear and accessible statement of existing rights and therefore constraints on the power of the EU to legislate.

As the noble and learned Lord’s previous remarks help to make clear, the charter is only one of the elements of the UK’s existing human rights architecture. It reaffirms rights and principles that exist elsewhere in the EU acquis, irrespective of the charter, and the Bill sets out how those rights and principles will continue to be protected in UK law after exit.

The noble and learned Lord referred to a number of issues, such as the case of Benkharbouche in 2017 in the Supreme Court. In that case the court found that there was a breach of Article 6 of the convention but it also referred to Article 47 of the charter in the context not of rights but of remedies. One has to bear in mind the distinction between rights and remedies.

The noble and learned Lord posed three questions in the context of previous observations about the charter. First, he talked about there being no loss of substantial protection. It is inevitable that leaving the EU will result in changes to the current arrangements, but certainly we do not accept that this in itself will result in a loss of substantive rights.

Secondly, he referred to the procedural protections that will be excluded. When we leave the EU, a person can still rely on sources that are reaffirmed in the charter. I emphasise “reaffirmed in the charter”, as he himself observed in 2008 and 2014. Procedurally there may be differences but we do not consider that that can be a basis for incorporating the charter into domestic law. Indeed, we absolutely stand by what has been said by the Prime Minister: it is not necessary to retain the charter to ensure that rights are protected.

The noble and learned Lord also referred to the body of the charter, beginning with Article 1, and suggested that these rights were contained only in the charter. I simply observe that on 5 December last year the Government published a very detailed paper setting out, as it were, a comparison of the rights in the charter and where they can be found elsewhere—in the convention, in the principles of EU law and in our own common law. The noble and learned Lord referred to Article 1, which concerns the right to human dignity. I remind him that there is a long series of case law both from the ECJ, as it then was, and from the European Court of Human Rights going back to 1995 in which, for example, the convention court emphasised that the very essence of the convention is respect for human dignity and human freedom. That has been repeated in a whole series of cases since then. These are well-established rights and they were well established when they were brought together into the charter.

I want to reassure noble Lords that substantive rights protected in the charter are, and will continue to be, protected elsewhere in UK law after we leave the EU, most notably in convention rights, in retained EU law, in the common law and via specific statutory protections such as those in our own equalities legislation. I have already mentioned that the Government published a detailed analysis providing guidance about how substantive rights found in the charter would be reflected in domestic law after exit.

Reference has been made to various legal opinions and that of Jason Coppel QC, who has had a number of name checks this evening. I can only implore noble Lords to look at the very detailed analysis the Government have produced. I also note that some of the references to Mr Coppel’s opinion involve references to his concern that Ministers might change rights, for example, or that the procedures will be affected. However, that is not to say that the fundamental rights underlying the charter are not found elsewhere.

[Baroness Hamwee (LD)]

My Lords, the noble and learned Lord quite rightly draws our attention to the distinction between rights and remedies, but he will agree that rights are not helpful unless there are remedies. If we were scrutinising the charter and the source of its rights to establish whether we were satisfied that the rights and remedies could still apply, we might, for instance, have noted that the sources of Article 1 mentioned in the analysis would not confer an enforceable right on individuals after exit day. That is the JCHR’s analysis of the analysis.

I hope that the Minister can answer the question asked, in particular, by the noble Lords, Lord Pannick and Lord Kerslake, about why we have combined the two debates—one about the charter, its rights and wrongs and whether it is good or bad, and the other about the mechanisms. We have heard so often from the Government Front Bench that this Bill is about mechanisms. Why are the Government not using the mechanism they have themselves designed to give them the opportunity, and to give the Committee the opportunity, to consider the substance calmly after the chimes of midnight?

European Union (Withdrawal) Bill

Baroness Hamwee Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Adonis]

My Lords, Amendments 160 and 170 are in my name and they would prevent regulations being made under Clause 9 if they,

“remove, reduce or … amend the rights of”,

an EU citizen,

“lawfully resident in the United Kingdom on any day before 30 March 2019”,

or until such time as Her Majesty’s Government have signed a reciprocal agreement with the European Union on the rights of citizens post-March 2019.

The issue here is simple. It is about giving legal effect to the assurance, which the Prime Minister has repeatedly given since Article 50 was invoked, that the rights of European citizens who are currently resident in the United Kingdom will be respected. The Prime Minister said in her October 2017 email to EU citizens not only, “I couldn’t be clearer”—actually, most of the Prime Minister’s statements which are not clear begin with “I want to be clear that”. She said she could not be clearer that,

“EU citizens … lawfully in the UK … will be able to stay”.

She also said:

“When we started this process, some accused us of treating EU nationals as bargaining chips. Nothing could have been further from the truth”.


If nothing could be further from the truth, why has Parliament not been invited by the Government immediately to give legal effect to the rights of EU citizens resident in this country? It is a very simple issue. The reason why it has not happened is precisely that the Government do want to use EU citizens as bargaining chips. Saying that they do not, when all the evidence is that they do, does not, I am afraid, cut the mustard at all.

The noble Baroness, Lady Ludford, also raised a crucial issue, which I hope the Minister will address. What is to happen to EU citizens who come here during the transition? We all know what the Minister will say: that it all depends upon the agreement. When the Prime Minister brings that agreement down with her tablets of stone, whether that happens in October, November, December or January, it will have to include a precise set of legal commitments on what is to happen in the transition. The only point I make in respect of that, which I hope the Minister might address in his remarks, draws very much on what the noble Lord, Lord Roberts of Llandudno, and the noble Earl, Lord Clancarty, said: that this is a really shabby way of presenting this country abroad.

Let us be clear. People across the world, including people whom we want to work in our National Health Service and make a big contribution to this country, are having to make decisions as we deliberate on whether they can come to this country from the end of March next year. Quite soon, that will be a matter not of months but of days in which they will have to make these decisions.

I am sure that the noble and learned Lord will claim that we are open and that we welcome them coming here. The noble Baroness, Lady Jones of Moulsecoomb, made what I thought was an excellent speech in favour of remaining in the European Union because we would embrace all the rights set out in the treaties. How is it that we can look at people straight and say to them, “This is a great place to come and live. We are going to maintain your rights, but even now, we are not prepared to tell you what those rights will be in a year’s time”? This country is presenting a terrible face to the world. Frankly, I am ashamed of the position our Parliament is adopting towards the rights of existing EU citizens, who still do not have those rights enshrined in law, and of those we are seeking to attract to this country from the end of next March.

As the whole Brexit project starts to disintegrate, nothing is undermining its moral foundations more than our inability as a Parliament—and, indeed, the noble and learned Lord’s Government—to give firm legal undertakings in respect of people who are resident in this country and came here in good faith.

[Baroness Hamwee (LD)]

My Lords, does the noble Lord agree that the issue is important not only to those who might be thinking of coming here, but to the people living here now? It is perfectly clear that their confidence has been undermined and they are showing that by voting with their feet. They are leaving jobs which are important to the whole of our society. The longer this debate goes on, having started from a position of, “Let us be clear: no rights will be taken away”, the less confident many people feel about their future.

Before I finish, perhaps I may say that I am grateful to the noble Lord, Lord Cormack, who also got off my chest a lot of the things I feel about this issue.

[Lord Adonis]

Perhaps I may respond to the noble Baroness and make one further brief point. The noble and learned Lord, Lord Mackay of Clashfern, said that we should be proud of our courts and the work they do. I entirely agree with him; however, we are told time and again—indeed, it is part of the argument for Brexit—that our courts are of course subservient to Parliament. They implement and give judgments on the laws that are passed by Parliament, which has still not guaranteed the rights of European Union citizens resident in this country. Moreover, because it is not being invited to do so by the Government, at the moment it will not make any declaration about those rights after the end of March next year. That, I believe, is shameful.

European Union (Withdrawal) Bill

Baroness Hamwee Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Viscount Hailsham]

My Lords, I shall speak briefly to the three amendments in my name, Amendments 109, 134 and 188. These are intended as sunset clauses but, as I do not want them to be sunrise clauses, I intend to be extraordinarily brief.

Those of your Lordships who have been in Committee during debates on Clauses 7 to 9 will know that I am very unhappy about the process those clauses attract. For example, the powers within those clauses are very widely drawn, the scope is considerable, the regulations are made by secondary legislation with very limited scrutiny, both parliamentary and ministerial, and they are triggered by a test—the test of appropriateness—which I regard as wholly unsatisfactory. For all those reasons, my view is that the regulations made under the regulation-making powers should die two years after Brexit and should, if necessary, be replaced by primary legislation. That is my suggestion to the Committee, and I hope it commends itself to your Lordships. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have Amendments 111, 137 and 192 in this group and share the unhappiness that has just been described. Mine is a narrow but, I think, important point.

The thrust of most of the amendments in the group —not the noble Viscount’s—is about consultation and transparency. You do not have to spend long working in Parliament to realise that scrutiny very much depends on the input of stakeholders—I hate the term but I cannot think of a better one at this time of night. They assist us to understand how things work in practice, both with technicalities and wider issues. That is not to say that I do not have great admiration for parliamentary counsel and the lawyers working in the departments, who are most concerned with statutory instruments, but my amendments would require consultation on the regulations provided for by Clauses 7 to 9. This should all be a co-operative venture, with stakeholders contributing at an early stage, not least for the reason that the regulations are statutory instruments and not open to amendment, so you have to get it right from the very start.

I was a member for some time of the Secondary Legislation Scrutiny Committee, which received a lot of very valuable representations—lobbying, if you like. I suspect we will not hear comments in support of Amendment 228 in the name of the noble Lord, Lord Adonis, about the Cabinet Office code, but I support the application of the code to the regulations. We may well be told that of course the code will apply. I have to say that in my time on the committee, we undertook quite a lot of work on the application of the code in practice and were quite critical of the responses we received from the Cabinet Office. One of our criticisms was that when consultation was undertaken—which it was not always—on the statutory instruments we were considering, the Government did not publish the responses to the consultation before they published the statutory instrument, so the work was not as helpful as it should have been.

Other amendments in this group are more detailed. Mine is not very elegant. I am not proprietorial about it but I wanted to raise the subject because some provision is necessary and, if I may say so, appropriate. It is a step that is very easy to miss out and I hope we will not be told that all the regulations in question are simply about technicalities and that stakeholders would have nothing to add to the exercise. Practitioners in almost every area may see what is workable in proposals being put forward, as well as substantive points.

[Baroness Young of Old Scone (Lab)]

My Lords, I shall speak to Amendment 227A in my name, which is also supported by the noble Lords, Lord Lisvane, Lord Tyler and Lord Judd. The amendment is intended to be helpful to the Minister, although it is unlikely that he will regard anything as helpful at this time of night. Nevertheless, it is intended in the spirit of helpfulness to ensure that the statutory instruments that the Government are proposing turn out to be correct and effective. Many of the changes made by the statutory instruments will be technical and potentially uncontroversial but some will involve policy choices. The aim of my amendment is to ensure wider consultation on statutory instruments before they are formally laid.

The nature of the challenge is quite severe. There will be an awful lot of them—potentially 1,000. I have been looking primarily in the last year at the number that will be required in Defra alone—over 100—on environmental issues. They will need to come thick and fast, and in many cases they are being dealt with in departments by staff who have only recently been recruited. Having seen these departments shrink in times of austerity, lots of people are now being recruited, some of whom are old faithfuls but some of whom are rather new and probably not as well acquainted with the policy area as we would like.

So there is a risk of two things: one is cock-up, if noble Lords will pardon the unparliamentary language—things just going wrong because of the sheer volume and pace; and the other is conspiracy. A large number of the Defra SIs will be roll-ups of a whole variety of issues. I am being ignoble in suggesting that the Government might hide under a pile of harmless stuff the odd thing with a slight curveball in it, but increased transparency and consultation would help reassure people that no fast ones were being tried.

The noble Baroness, Lady Hamwee, pointed out—and it is inalienable—that the process of both the affirmative and the negative procedures means that once measures are formally laid there is very little room for manoeuvre, so it is important that this consultation happens in advance. I thank the noble Lord, Lord Callanan, for his letter of 20 February, following Second Reading. It provided more information but offered only that the Government would make efforts to publish a sample of statutory instruments in draft where appropriate. That rather misses the point, which is to let loose on these drafts expert eyes from across a variety of sectors of stakeholders to help the Government with that checking process to make sure that nothing has been missed, there has not been a cock-up and the policy intentions have not been perverted in any way. I hope the Minister will consider this and see it as a genuinely helpful proposal.

--- Later in debate ---

[Baroness Young of Old Scone]

I am not sure that the evidence stacks up on that. I have been seeking clarification from Defra for over a year now on just a simple list of the issues that might be subject to statutory instrument, and I have been unable to get that from the department. Perhaps the Minister might like to prod departments to reflect the terms she just stated.

[Baroness Hamwee]

My Lords, I too asked for a list of necessary statutory instruments from the Home Office, and the Parliamentary Answer was that the work had not been done to calculate the number.

[Baroness Goldie]

I say to the noble Baroness, Lady Young of Old Scone, that it is a pleasure to be asked to do the prodding rather than be the recipient of the prodding, which has certainly been my sensory experience standing at this Dispatch Box. I understand her concerns and will certainly relay them to my noble friend Lord Gardiner.

Similarly, I will refer the point raised by the noble Baroness, Lady Hamwee, to my noble friend Lady Williams. I understand the concerns; there must be a degree of frustration. It may of course simply underpin the enormity of the challenge confronting departments, in that at this stage it is extremely difficult to try to map exactly what lies ahead. Some of it might be predictable but some of it is unknown and will depend on the negotiations. However, I undertake to do what I can to seek some assistance.

The requirement in the amendment of the noble Baroness, Lady Hamwee, for relevant stakeholders to be consulted on all the provisions contained within all statutory instruments made under Clauses 7, 8 and 9 goes, I believe, beyond what is reasonable in this instance and belies the nature of those instruments. I appreciate the concerns that we have heard throughout this debate about the potential breadth of the power—something that clearly concerns my noble friend Lord Hailsham—but I hope that the Committee will accept at the least that a great many instruments will be technical and minor, and will merely ensure flexibility, swiftness in dealing with identified defects and, of course, continuity of our legal framework.

A specific legal requirement to consult could also impact on our negotiations with the EU. It could inadvertently expose our position at an inappropriate moment if we were engaged in sensitive discussions about particular issues. Compulsory consultations would also impact on the tight timeline for Parliament to scrutinise instruments. The consultation process requires resources and time from government and stakeholders, and we want to focus the energies of those inside and outside government on the most important measures rather than have them occluded by the sheer volume of consultations on what might, at the end of the day, be very minor technical matters. That is the challenge that could arise under these amendments. I hope that the noble Baroness understands why the Government cannot accept her amendment, and I urge her not to press it.

--- Later in debate ---

[Baroness Hamwee]

Before the noble Baroness moves on to the other amendments, is she able to expand a little on the point about upsetting negotiations? We are talking about moving existing legislation over the break point into the future. I am quite puzzled by that part of her response.

[Baroness Goldie]

That may be part of what is involved but the other part might, as emerged in earlier discussions today, impact on subsequent matters that are germane to the negotiations and will therefore have to be taken into account in whatever legislative framework is proposed. It is not just a simple question of the bridge; there may be other aspects to be considered.

--- Later in debate ---

[Baroness Hamwee]

My Lords, on the code of practice that is the subject of the amendment of the noble Lord, Lord Adonis, my experience from the Secondary Legislation Scrutiny Committee is that it is honoured in the breach as well as in the observance.

[Baroness Goldie]

There was a universal welcome for the Government adopting as their principles much of what was proposed by the Secondary Legislation Scrutiny Committee. The committee has a locus if it considers that consultation has been inadequate.

I turn to the amendments tabled by my noble friend Lady Neville-Rolfe, starting with Amendment 249. She has an exceptional, perhaps encyclopaedic, understanding of the statutory instrument processes and is clearly aware of the historical issues that led to concerns regarding the quality of documents laid as part of this procedure. While I understand the concern that underpins her request to place in statute the responsibility to provide sample statutory instruments before both Houses, the Government do not believe that such a responsibility is proportionate. Wherever possible, and where negotiations will not be affected, we would hope to provide details of draft SIs from all sectors.

The noble Baroness’s proposed new paragraph in Amendment 250 seeks to address the procedures for conducting consultations. She makes a number of sensible suggestions as to what should be considered and included when conducting consultations—in fact, many of these are already being conducted or are currently being incorporated—but to require that a draft instrument should be published not less than 60 days before it is laid would place an undeliverable duty on departments, given the limited timeframe that is available and the need at times not to reveal expectations as to the outcome of negotiations while they are ongoing.

Similarly, Amendment 251 would place an impossible burden on the House and its time and does not allow for flexibility in the management of business. The new proposals for laying draft negative SIs with a sifting committee would mean that the Minister would not be able to give any indication as to when it was expected that the instrument would be debated. In these cases, if, as I hope, the Committee accepts the recommendation of the Government that the negative procedure is proportionate, the SI would proceed as a negative statutory instrument. This House has a well-established process for considering affirmative and, where desired, negative SIs, and we want to see this continue.

None of this is to refute that my noble friend has set out some very good suggestions for practice, but practice should not be placed in the Bill. Indeed, the noble Baroness, Lady Smith, had an interesting suggestion about listing SIs once known.

European Union (Withdrawal) Bill

Baroness Hamwee Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Baroness Sheehan (LD)]

My Lords, I shall say just a few quick words as my name is also attached to this amendment. In essence, what the amendment boils down to is that without the UK’s continued participation in Dublin III, which would be the case if Brexit were to happen, an unaccompanied orphan in Europe, among others, could no longer apply to be reunited with close family members while an asylum claim is being processed. Brexit is about many things but it is not about doing away with one of the very few safe and legal routes that exists to bring some of the most vulnerable children to the UK.

Since this amendment was debated in Committee we have witnessed the maelstrom that has raged over the inhumane treatment of the Windrush generation. Across the Commonwealth, how the Windrush scandal plays out is being watched with concern and our reputation is on the line. I say to the Government that at a time when we are trying to redefine our place in the world and looking for good will and support from friends across the globe, to be seen as a nation that is trying to isolate itself from responsibilities to people seeking sanctuary, some of them very young, will not do us any favours.

The Britain that the world knows and that the British people, by and large, recognise is the Britain that has always spoken up for values and principles that enshrine in international law the rights of vulnerable people who, through no fault of their own, find themselves destitute and place themselves at our mercy. We have a proud history of welcoming them and I should like us to continue to do so. So should the noble Lord, Lord Dubs, decide that the Government’s moves are not enough to satisfy him and wish to seek the opinion of the House, we on this side of the House will wholeheartedly support him.

[Baroness Hamwee (LD)]

My Lords—

[Lord Goldsmith]

My Lords, my noble friend Lord Dubs, in moving this amendment, described it as a modest proposal. It is modest in two respects. First, for the reason that he gave: all he seeks is to replicate the current arrangements, already approved by Parliament and in operation at the moment. That is not a great change at all from where we are. There is a second reason that it is modest: I pay tribute to his modesty in producing this amendment, having fought for the previous amendment, having persevered, and he is absolutely right to ask the House again to support it. I hope the House will.

It sounds as though the Government are entirely in agreement with the objectives. They agree on the need to protect the most vulnerable children and to provide this way of safety for them to claim asylum where appropriate. It sounds as if the only difference may be over the way to deal with it. Everybody, including my noble friends Lord Dubs and Lord Bassam, the noble Baroness, Lady Sheehan, and the noble and learned Baroness, Lady Butler-Sloss, whose names are on the amendment, recognises that this will require negotiation with other countries, because we cannot do it entirely on our own. Does the Minister agree that if this House were to say in a clear vote tonight what it thinks the Government should do, and put it in the Bill, that will actually strengthen the hand of the Government when they come to negotiate with other countries and others? They will be able to say, “This is what our Parliament wants”—assuming that the other place agrees. Those circumstances will make it much easier to negotiate; that may be the only point.

I am not going to take any more of your Lordships’ time: I think it is time either for the Government to accept the amendment, as I hope they will, or, if they fail to do so, for my noble friend Lord Dubs to divide the House, in which case we will strongly support him through the Lobby.