European Union (Withdrawal) Bill

Lord Bassam of Brighton Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Callanan]

I am sure that the statements made by the Secretaries of State in the other place are true and valid and that they will be endeavouring to fulfil them. There will be further legislation, as we have said, on the withdrawal agreement and implementation Bill when we have sought and obtained agreement with the EU, and I am sure that further international trade Bills will follow in due course as well. However, that is not the subject of this legislation, as the noble Baroness well knows.

[Lord Bassam of Brighton (Lab)]

My Lords, the Minister was on his feet for just 12 minutes dealing with a debate that had taken over three hours. There are four sets of amendments here that deal with delegated powers. He has not addressed that issue at all in this debate but it is very much the focus of those amendments. That is a pretty shabby performance, actually, and this House is entitled to be extremely dissatisfied with the response that we have had. Further, we have had a big debate about the single market and the customs union but the Minister dismissed that in his opening comments. He said the Government were preparing themselves for a customs union-lite type of arrangement but failed to set out any details of what that might look like. This House deserves better explanations to its amendments than that, and I hope this does not give rise to an equally shabby performance on all the other amendments that we have to consider; there are over 300 of them.

[Lord Callanan]

I realise that. I apologise if the noble Lord is disappointed but I was trying to address what is actually in the Bill. As I said, further legislation will follow. We have spent three and a half hours so far debating one grouping of amendments, and we have eight further groupings to get through this evening on the timetable agreed by all the usual sources.

European Union (Withdrawal) Bill

Lord Bassam of Brighton Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Bassam of Brighton (Lab)]

Do not hold that against him.

[Lord Foulkes of Cumnock]

Yes, he is a good bit younger than me, Steve—sorry, I mean my noble friend. He may not remember this, but Whitehall mandarins and Ministers did not like the idea of devolution. They were losing power from their central departments in Whitehall and opposed it. However, we had strong and effective Labour Ministers, particularly Donald Dewar, my noble and learned friend Lord Irvine and others, who made sure that real powers were devolved to the Scottish Parliament. Whitehall mandarins and Ministers still do not understand devolution. They have not come to terms with the new reality that there is not just one Parliament in the United Kingdom but four and that the others must at the very least be consulted on matters that affect them.

European Union (Withdrawal) Bill

Lord Bassam of Brighton Excerpts

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

Moved by

[Lord Bassam of Brighton]

51: Clause 6, page 3, line 33, at end insert “subject to any agreement under subsection (6C)”

[Lord Bassam of Brighton (Lab)]

My Lords, I rather hope that the modest amendments in my name do not take the House two hours to deliberate over. They focus on a narrow set of issues relating to pending cases.

Amendment 62 would allow our domestic courts, subject to the terms of the withdrawal or transitional agreement, to refer cases to the CJEU after exit day if the course of action arose before exit day. Amendment 61 would require the Government to obtain from the CJEU and then publish a list of pending cases referred to domestic courts before exit day. Amendment 64 changes the definition of retained EU case law to include case law relating to pending cases referred to the CJEU before exit day.

These amendments were drawn from the Constitution Committee’s excellent report on the Bill and essentially aim to deal with two issues: first, pending cases in domestic courts that might have been referred to the CJEU and, secondly, pending cases already lodged with the CJEU before exit day. In the first instance I am really asking for the Government’s assurance that, in any withdrawal or transition agreement, they will seek to clarify whether domestic courts can continue to make reference to the CJEU in relation to cases that began before exit day. I can see that there has to be a cut-off point for references but it is the timing of that point which concerns me. What criteria will Ministers apply and how will these be written into the agreement in such a way as to guarantee, and not undermine, procedural fairness and access to justice?

It may seem that this is a small or insignificant matter but, given the wide range of issues that the court considers, I think not. After all, it looks at everything from trademarks to intellectual property rights, workplace rights and even the distribution of EU funds. Given that cases started before the Prime Minister triggered Article 50 are likely to be treated differently from those which followed it, it is surely important that principles of fairness and consistency enter into any agreement which the Government can sign.

The second type of pending cases, dealt with in Amendment 64, will be those that are already with the CJEU. In another place, the Solicitor-General argued that these cases would simply continue. That is fine as far as it goes but, as the Constitution Committee pointed out, the Government intend to provide for these pending cases to be covered in the withdrawal agreement and implementation Bill. But what happens to those cases if there is no deal? Would it not make sense to have a saving provision in the Bill saying simply that any case that is with the CJEU is determined to be treated as contributing to pre-exit case law, and in turn forms part of retained EU case law?

The Constitution Committee’s proposal that the Government should produce a list of cases on exit day that would be treated in this way made very good sense. To my way of thinking, that is a logical way of handling quite a complex set of legal issues, which are obviously well beyond my sort of competence as a non-lawyer. However, I hope that the Minister can satisfy my curiosity and set out how the Government intend to proceed. I also hope that he can satisfy the Constitution Committee, which I thought had a rather neat solution to the problem. Pending cases are of great value and will be of great interest to colleagues. I am hopeful that the Government can satisfy my simple concerns and provide us with an explanation that works. I fear that we will otherwise end up with something of a case law muddle. I beg to move.

[Lord Goldsmith (Lab)]

My noble friend is absolutely right that this is not a small or insignificant matter. It is an important one with rule-of-law implications. The starting point, as he explained, is his proposed Amendment 62 which, if agreed, would add a new paragraph (6C), the purpose of which would be to encourage the negotiation of an agreement that cases can continue to be referred to the CJEU by our own courts after exit day. That would relate to new cases where the cause of action arose prior to exit day. This is logical because the important point is about whether the full remedies currently available to litigants, potential litigants and, importantly, our courts remain until we leave, while the law of the EU remains in place.

Of course, being able to refer such cases depends on an agreement, the very agreement that my noble friend’s amendment would make it an objective to negotiate. We will not be able to refer cases to the court in Luxembourg after exit day, except by agreement with the EU in such an agreement. But he is also right that there is a risk—although we hope very much that it will not happen—that if we end up without a withdrawal agreement, there would need to be legislation enabling this to continue to take place. So the principle of the amendments seems entirely right, and he is right to say that this was dealt with by the Constitution Committee at paragraphs 150 and 153 of its excellent report.

Perhaps I may refer to what the committee said in paragraph 153, having made the point that my noble friend has identified:

“We recommend that, irrespective of any implementation bill, pending cases are dealt with in the European Union (Withdrawal) Bill. We further recommend that rulings on cases that have been referred to the CJEU before exit day are treated as pre-exit case law—such that they form part of ‘retained EU case law’—and that the Government publishes, on exit day, a list of all such cases”.


The middle part of that, on what the significance is of,

“rulings on cases that have been referred … before exit day”,

is dealt with in a later amendment. But, as he has said, the requirement that the Government should publish a list of all such cases is dealt with in these amendments. He is right to say that the Solicitor-General in another place referred to the importance of knowing, at least as I read his remarks, what those cases are.

It seems that there has to be a justification, although I can see none, for depriving litigants and our courts of the ability to refer cases to the CJEU. It is important that noble Lords are clear on the fact that that does not mean sending cases to the CJEU for it to decide; it is for that court to determine questions of interpretation, as the treaty currently provides, although the interpretation given may in fact then decide the case. Our own courts would then take the interpretation provided by the European court and apply it to the case before them.

I look forward to hearing what the noble Baroness or the noble and learned Lord, depending on who will respond to the debate—forgive me, of course it is the noble Baroness the Minister—will say to my noble friend.

--- Later in debate ---

[Baroness Goldie]

I thank the noble and learned Lord for his point, but I am afraid my response is going to be slightly less encouraging for him. The position of the Government is that we do not agree that new cases should be initiated post exit, even when these refer to pre-exit causes of action, because it would lead to an uncertain environment. It would be impossible to predict for how long the European Court of Justice would continue to issue judgments in respect of the UK. That, in the opinion of the Government, would strike at the underlying purpose of this Bill, which is to try to achieve a snapshot—to use that phrase again—as at the date of exit.

[Lord Bassam of Brighton]

I am grateful to the Minister for her response. She partly satisfied my concern, but not wholly. I do not really think it is satisfactory that the cases that will be floating around in the ether will be left with the degree of uncertainty that she has suggested may be the case. The fact that the legislation that is going to cover this point will be left until the final Bill—the transition and withdrawal Bill or whatever it is finally called—does not satisfy me greatly. I think that will leave uncertainty for litigants in cases that could be incredibly complicated. I am rather worried that this issue is going to get caught up in the Government’s general dislike for the CJEU. My recollection is that this is one of Theresa May’s red lines: she does not like the CJEU and therefore part of taking back control is getting rid of it. We have got news for the Minister dealing with this: it is going to take the UK some time to extract itself from CJEU processes. The quicker the Government wake up to that fact, the easier it will be for us all to deal with it. In becoming more realistic in their approach to the court, the Government will give some greater certainty as to how we intend to proceed in future.

While I am happy to withdraw my amendment for the moment, I may come back to this at a later stage, because our legal system and litigants require greater certainty. This is not necessarily the small issue I dreamed it might be when I came across it in the Constitution Committee’s excellent report. I am grateful for the debate we have had, but I am not so grateful for the answer. We will probably require a bit more from the Minister at a later stage. I beg leave to withdraw my amendment.

Amendment 51 withdrawn.

European Union (Withdrawal) Bill

Lord Bassam of Brighton Excerpts

Committee: 7th sitting (Hansard - continued): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Dubs]

My Lords, I should explain that this amendment to my Amendment 208 is a technicality. I have been told that there is a slight flaw in the original amendment, so I have deleted four words. I have decided that this is the way it should be done. I beg to move.

[Lord Bassam of Brighton (Lab)]

My Lords, I rise to support the amendments tabled by my noble friend Lord Dubs, the noble Baroness, Lady Sheehan, and the noble and learned Baroness, Lady Butler-Sloss. These are important amendments that, frankly, should not be left to be considered at the fag end of a long day. I hope that when we come to the Report stage of the Bill, they will be debated in a rather fuller House than is the case this evening.

In essence, as my noble friend Lord Dubs has said, the amendments seek to preserve the position established by him during the discussions on the last Immigration Act and as a product of Dublin III. Since 2015, some 811 unaccompanied children have been successfully reunited with family in Britain under the Dublin III arrangements, while a further 250 have been transferred under Section 67 of the Immigration Act 2016. These are not big numbers and it frankly shames our country that we have failed to provide help and support for children fleeing war zones and civil war, but at least they represent a level of intervention that we can recognise as the beginning of a humanitarian programme of aid and support. It would be my wish to see our country go further.

In 2015, more than 1 million people arrived in Europe seeking refuge. It is estimated that 90,000 of them were unaccompanied children. The fact that we have taken just over 1,000 I find frankly lamentable. However, I recognise that we need to be realistic in the current situation and those of us committed to helping refugees, particularly child refugees, want at least to ensure that in a post-Brexit Britain we keep alive the important gains we have made to date. As my noble friend Lord Dubs has argued, these amendments go no further than ensuring that the UK Government do not close down safe and legal routes for unaccompanied children and adults seeking asylum to join family and receive protection.

I am not as experienced in arguing the case for refugees as my noble friend Lord Dubs, but I have had some personal experience of dealing with the fallout for refugees through the Refugees at Home charity, which seeks to place refugees with families. For some six months, my wife and I had a young woman called Riam staying with us while she sorted out her asylum status and began to rebuild her life. In talking to her extensively during that time, I gained a picture of how it must feel for many thousands of refugees across Europe who need help and support. Her family were originally from Aleppo. They fled the violence and moved to a city that they thought was safer. She, her sister and her brother eventually escaped the Syrian conflict, leaving her mother and father behind. Now, the family communicate by phone and, occasionally, by Skype. Her brother and sister are in different cities in different European states. This family faces the prospect of never being able to see each other again and enjoying the normal things that families do.

I know that Riam worries endlessly about her parents’ welfare. She once told me that ISIS—and loyal and rebel forces—had made it to the outskirts of her parents’ city and were engaged in fighting. She was terrified by that prospect. I cannot imagine how she must feel daily: estranged, thousands of miles away from her family, who are scattered across Europe and the Middle East, with a sense of loss and not belonging always present in her mind. She is a gifted woman with most of her life ahead of her; she now works here in the UK.

If these amendments are agreed—as they should be, given previous amendments—we can at least make a contribution to helping some of the most vulnerable young people in Europe with a safe passage and some optimism. For the longer term, we need an EU-wide agreement that ensures we shoulder a fair share of the international refugee crisis. My fear is that post-Brexit Britain will turn its back on an issue where we need common and binding institutions to bring countries together to help. I want to hear from the Minister that we will at least retain a common commitment, and I want some reassurances that we will work together across the EU 27—whatever the outcome of the negotiations—to secure fair and humanitarian outcomes in the future, especially for young people and vulnerable refugees. It gives me great pleasure to support the amendment of the noble Lord, Lord Dubs, and I hope that this House will eventually agree to it at a later stage.

[Baroness Sheehan (LD)]

My Lords, I support the amendment in the name of the noble Lord, Lord Dubs. My purpose in adding my name to it is quite simple. If Brexit happens, I want to preserve one of the few safe and legal routes open to unaccompanied children seeking asylum.

Although the Jungle camp in Calais was demolished in October 2016, thousands of asylum seekers remain destitute in France and other parts of Europe. Many children are among them. Dublin III presents a safe and legal route through which a process can be put in place that will allow them to be reunited with parents, uncles, aunts, siblings or grandparents who, in some cases, may themselves be seeking asylum. That is the crux of the matter: it does not take a psychologist to tell us that the separation of children from their families has a detrimental impact on their emotional well-being and physical and moral development. If Dublin III were not to be transferred into UK law post Brexit, an orphan in Europe could no longer be reunited with other close members of his or her family.

A week and a half ago, I was back in Calais to catch up with developments there and lend support to the work that Help Refugees does there. The young volunteers there—many of them British—were working flat out during the bitterly cold spell we have recently experienced. Many of the asylum seekers there are still trying to cross the border illegally, which often means taking their life in their hands. Five children have died over the last two years in the attempt, but for some, there is the hope that legal help provided by organisations such as Safe Passage will secure for them a safe and legal route to the UK so that they can be reunited with a family member or relative here. Without a functioning equivalent of Dublin III, children will continue to congregate in Calais, taking desperate and life-threatening steps to reach their families. I hope that, as a nation open and welcoming to refugees in the past and with a proud history of doing so, we can continue doing it and keep our heads held high on the global stage.

European Union (Withdrawal) Bill

Lord Bassam of Brighton Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Duncan of Springbank]

I thank the noble Lord for his question. I am again reminded of the importance of the United Kingdom’s academic sector and the academic excellence which it creates, not just in the wider area of science but specifically in medical science. I am aware of how important that innovation is and believe that, right now, it should be able to speak for itself in the negotiations and discussions in terms of the wider recognition and import of what they represent.

I am conscious that, as we embrace the challenges which lie ahead—

[Lord Bassam of Brighton (Lab)]

Will the Minister answer the point made by my noble friend Lord Hunt? It sounds to me that he is unable to do so. If that is the case, he should tell the House so. It is clear to me that he has not answered the question, which is highly pertinent and relevant to the direction of the debate.

[Lord Duncan of Springbank]

I am sorry if I have misled noble Lords. I am unable to answer the question. That will be a matter for the negotiations and I cannot comment upon them. This is the point made earlier by the noble Lord, Lord Deben. I wish I could, but I cannot. I am sorry if my response misled the noble Lord as well. Determining exactly how that mutual recognition will work in practice will be a matter for the ongoing negotiations. I hope that it will work on both sides in a common-sense way which recognises that, at the heart, we are talking about the health and well-being of individuals. We are not talking about constitutional matters or anything other than ensuring the best health for the people of the continent of Europe that we can achieve.

European Union (Withdrawal) Bill

Lord Bassam of Brighton Excerpts

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

I say this in conclusion. I believe that public opinion in Britain is essentially humanitarian and essentially says, “Yes, we accept that child refugees are vulnerable, and we should take at least some of them”. The Government would be flying not in the face of public opinion but with it. I realise that the Home Office has had a difficult patch in the last little while, which has made it a bit more difficult for some of the informal discussions I have had to take place before almost the last minute. Without wanting to sound too pompous or patronising, I think that a Home Office commitment to a humanitarian cause would not go amiss in terms of the reputation of the Home Office and of this country. I think that I have made my case. I beg to move.

[Lord Bassam of Brighton (Lab)]

My Lords, my name is joined with that of the noble Lord, Lord Dubs, on this amendment. I think that if I was to make a lengthy speech in support of the amendment the House would not thank me. It is much better that we try to resolve the matter.

I want to thank the Minister for our meeting earlier today with the noble Lord, Lord Dubs. It was very useful but also quite instructive. I think that we were agreed that we were not far apart in what we were both seeking to achieve. Where we differ fundamentally is that the noble Lord and I share the view that we should put such a provision in the Bill.

There was a lot of resistance when the noble Lord tried to do this with his original Dubs amendment. Some of the arguments then were exactly the same. They were: “This isn’t something you should try and commit to legislation”. Well, I think it is, because it sets a benchmark and a threshold, and it gives an instruction. The Government are often keen to tell us that they have been instructed on things, and we need from time to time to be clear about what we are trying to achieve in negotiations. This is one of those occasions.

We should not resile from our humanitarian commitment. This evening, by supporting the amendment in the name of the noble Lord, Lord Dubs, we will be fulfilling that commitment. I therefore hope that the House comes speedily to a conclusion in this debate, so that, if we have to, we can divide on it and give support to the noble Lord on a very important matter to which I think we all wish for a happy outcome.

[Baroness Butler-Sloss]

My Lords, I, too, have put my name to the amendment. As the noble Lord, Lord Dubs, has pointed out, we are talking about the rights of children. This is not just a humanitarian question; it is about a number of children across Europe who have a right to come to this country at the moment because their family is here.

Having gone to Calais last summer and having with Fiona Mactaggart, the former MP, written a report on what was going on in Calais and Dunkirk, I know that the plight of children there who have not yet been processed is dire. The plight of children in the Greek and Italian camps is very poor. Therefore, the way in which Dublin III works is patchy, but, as the noble Lord, Lord Dubs, has said, it works to some extent. Please let me repeat: we are talking about children with rights and not advancing arguments based exclusively on humanitarian grounds.

I was lucky, with the noble Lord, Lord Dubs, to be at a different meeting from that referred to by the noble Lord, Lord Bassam, in which we met two Ministers, the noble Baroness, Lady Williams, and the noble Lord, Lord Duncan. We had useful discussions. I entirely accept the genuineness of their offers to the noble Lord and me. They are trying hard to placate us. They have expressed good intentions which are, as far as they go, valuable, but they are aspirations as to what might happen at a later date. They are talking about the possibility of an immigration Bill and of another Bill later this year, or what they call in lovely general terms a vehicle into which this sort of thing can be placed. As far as it goes, that is good, but it does not go far enough.

I would like the House of Commons to have time to discuss this amendment if this House passes it, as I hope it will, so that, by that time, Ministers will perhaps have got their act together to be able to make much more concrete offers to the House of Commons. Therefore, it is important that we support this amendment at this stage so that at least the other House has the chance to consider it. I will therefore vote for the amendment if the House divides.