European Union (Withdrawal) Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 14th March 2018 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

161A: Clause 9, page 7, line 17, at end insert—
“( ) amend or vary the provisions of the Immigration Act 1971 relating to passport control procedures on journeys within the Common Travel Area.”

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I cede to my noble friend Lord Hain, who will lead on this group, and then I will speak to my amendment. I beg to move.

[Lord Hain (Lab)]

My Lords, I am very grateful to my noble friend Lady Kennedy of The Shaws for enabling me to speak to this amendment on the common travel area and to Amendment 198 in my name and those of the noble Baronesses, Lady Altmann and Lady Suttie, and the noble Lord, Lord Kerslake. It seeks to deliver into statute what the Government agreed with the EU on 8 December:

“The Good Friday or Belfast Agreement reached on 10th April, 1998 by the United Kingdom Government, the Irish Government and the other participants in the multi-party negotiations (the ‘1998 Agreement’) must be protected in all its parts, and that this extends to the practical application of the 1998 Agreement on the island of Ireland and to the totality of the relationships set out in the Agreement.”


My noble friend Lord Browne of Ladyton will also address this specifically on Amendment 215, an important amendment that he has tabled with the support of other noble Lords—and noble Baronesses.

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The 1998 agreement was drawn up in the context of shared UK and Irish membership of the EU, and its practical implementation centres on continued regulatory alignment. UK withdrawal from the EU means that the trajectories of the UK and Ireland will now diverge. The divergence will be wide-ranging and will happen in law, trade, security, rights, policies and politics. Brexit therefore risks deep fissures between the UK and Ireland and thus puts the Good Friday agreement at risk. Brexit, with its re-emergence of exclusivist definitions of sovereignty, nationalism and state borders, threatens to destabilise the fragile equilibrium in Northern Ireland. There are those in the Cabinet and in the ranks of the ideological hard right who see the Good Friday agreement as a tedious encumbrance to their form of Brexit, rather than as the cornerstone of a hard-won peace process that is not yet complete. They cannot be allowed to put that at risk. That is why this amendment is necessary and why I hope it will be voted on on Report.

[Baroness Kennedy of The Shaws]

My Lords, Amendment 161A is tabled in my name and leads this group of amendments. I felt it was right that my noble friend Lord Hain opened the debate because he roamed much more widely that I intend to. Noble Lords will see that Amendment 161A looks at the common travel area and how we might proceed in future with regard to it.

I want to remind the Committee of the background to the common travel area. It is largely a passport-free zone between the UK and Ireland and the Isle of Man and the Channel Islands, which are not in the EU. Save for a decade-long period of suspension around World War II, a form of common travel area has existed since partition and was maintained throughout the Troubles. The arrangement is complex and its existence is already recognised in the EU context. It is a changing context and is not copper-fastened, but rather left to politics, convention and legislative reference.

In the United Kingdom, Section 1(3) of the Immigration Act 1971 provides that arrival in and departure from the UK from or to elsewhere in the common travel area cannot be subject to passport or border control. Although the common travel area predates and is separate to EU freedom of movement, a post-Brexit scenario presents novel challenges as well as an opportunity for us to rethink and codify the common travel area on a more effective and principled basis.

I wanted to raise the fact that, at the moment, there really seems very little that is solid around the movement of people. I am talking here not about the movement of trading goods but about the movement of people. As we know, the Government have a policy to create a hostile environment for migrants who end up with irregular status. On current plans, that would in future include migrants from elsewhere in the European Union, with the probable exception of Irish citizens. The question then turns to how the Government will enforce their desire for such significantly increased migration control while maintaining an open border. If the Government are sincere in saying they do not want a hard border, where will the checking of papers take place and how will it be done? It seems to me and to many that this has been largely overlooked in detailed discussions so far. The position paper is limited to setting out that future UK immigration arrangements will maintain the common travel area free from “routine” border controls.

It looks like an indication that the Government may be considering reviving plans for selective mobile checks on people not perceived to be British or Irish citizens. I want to just think about that. Not that long ago in this House, in 2009, there was a moment when it looked as though the common travel area was endangered. The Government at that time intended having “ad hoc” checks on the land border, because of concerns about illegal immigration, that would target non-British and non-Irish citizens. The suggestion was that there should be passport checks between Northern Ireland and Great Britain. The policy was defeated in this House by an amendment tabled by the noble Lord, Lord Glentoran, following concerns raised by Peers in debate and by the Northern Ireland Human Rights Commission about both racial profiling and internal immigration controls within the United Kingdom. There was very real concern about it.

The proposal envisaged non-common travel area nationals—persons who were neither Irish nor British citizens—having to carry identity documents to cross the land border, with British and Irish citizens not having to do so. But of course unionists in Northern Ireland were very concerned about what this would mean for them. Were they going to have to prove their position as they travelled within their own nation? This prompted the clear question as to the basis on which examining officers would distinguish between the two groups of citizens—people who were entitled to travel and those who were not. In a post-Brexit context, under current plans, there would also be the question of distinguishing between EU citizens who had acquired rights by virtue of residence prior to Brexit, and those EU nationals arriving subsequently who may remain non-visa nationals but will be subject to restrictions. How would this be done? I have been drawing on research by lawyers from both Queen’s University and the University of Ulster, as well as human rights organisations in Northern Ireland, who are concerned about this.

As for potential solutions in a post-Brexit context which would avoid the need for a hard border and the risks of widespread profiling—pulling out people who they think look like foreigners—you would have to make some special arrangement. Members of the negotiation team would have to explore models that would somehow create special circumstances to deal with the Northern Ireland situation. It may have to be that we talk about continued EU freedom of movement into Northern Ireland in an agreement with the European Union to ensure that British citizens in Northern Ireland continue to enjoy equivalent rights to Irish citizens in the jurisdiction—a core principle, as we have heard, of the Belfast/Good Friday agreement.

I tabled the amendment, and raise these issues, to tease this out. To some extent, it flies in the face of some of the policing matters that the noble Lord, Lord Patten, who I see in his place, sought to put in place under the bilateral treaty agreement to avoid problems of this kind in policing and border control. It would not be compatible with the treaty that we have entered into with the Good Friday agreement to require a dual Irish-British citizen, or someone identifying as British, to rely on their British citizenship alone to access entitlements or equal treatment in Northern Ireland. It just comes back to this question: how is it to be done? Are we to have mobile units that will stop people?

Recently there was rather a high-profile litigation case against the Home Office, supported by the equality commission, involving a British woman who was stopped at Belfast City Airport by an immigration officer. The victim, who was not even a passenger but was dropping off a relative at the airport, gave her account of events, which was upheld. She was told by the immigration officer that she had been singled out as she,

“looked foreign and obviously not from here”.

She was black. It is not an isolated case, so there are concerns about that, at one end, but also about what it will mean across the board. How is this to be done? We look forward to hearing, in this testing set of amendments, how this is to be done in a way that will not involve having controls, even mobile ones, that are discriminatory.

[Baroness Doocey (LD)]

My Lords, my reason for putting down Amendment 187A was to ensure that if we are to leave the EU, we do so in a way that does least damage to all the communities that we, as parliamentarians, represent.

Northern Ireland is in some ways a microcosm of the challenges that the UK faces in pursuing Brexit. But Northern Ireland adds further complexities, with delicate issues stemming from the Troubles and the peace process. These have been added to by the current political difficulties following the collapse of the Executive some 15 months ago. Since the signing of the Good Friday agreement nearly 20 years ago, there has been an enormous change in attitudes in Ireland that could not even have been imagined when I was a young girl growing up in Dublin. I am one of many of my generation who grew up in the Republic and who thought of the north as almost a foreign country. When I was a child, I had an uncle who manufactured children’s clothing. When he won a contract to make school uniforms in Northern Ireland, the family greeted this news with as much excitement and awe as if he had been invited to China to make uniforms. That was how alien Northern Ireland was to us: a mere 60 miles away—the same distance as London to Oxford—but light years apart.

Contrast that reaction to how young people today see the border—or rather, do not see it at all: people who have reached adulthood without ever having to experience, first-hand, stops and checks as they travel from one part of Ireland to the other. I did not even visit Northern Ireland until I was living in London and had to go to Belfast on business. I am not sure what I expected, but I was completely bowled over by how absolutely beautiful it was and the amazing people who live there. Today, 35,000 people cross the border every day for work, leisure, education and pleasure. No borders should be erected that will undo this progress.

The purpose of the amendment is to put into concrete legal terms what the Prime Minister and her Government are already committed to. The joint report on phase one of the Brexit negotiations that was published last December included a commitment to no physical border on the island of Ireland as a result of the Brexit vote, and the Prime Minister repeated that promise earlier this month. That commitment is clear and unambiguous, but how is it to be achieved?

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[Lord Empey]

I understand what the noble Lord is saying perfectly well. To put this into context, my party supported remain in the referendum, on a free vote. We cited two things: Scotland and the border. I have had this discussion with the noble Lord, Lord Cormack. I am not a Europhile at all—I never have been, even though I spent eight years in Brussels on the Committee of the Regions, very minor body that it is. I have some sense of the EU. But a vote has taken place, and we accept the outworkings of that vote. We are trying to get on with it and to find a solution that works for all of us.

When we talk about “the” border we must remember that it is not confined to the island of Ireland. The primary bit of the border between the United Kingdom and the Republic of Ireland is actually between Dublin and Holyhead, Rosslare and Fishguard—it is in Wales. That is where the vast majority of the problem lies, and where the bulk of the goods go in order to use Great Britain as a land bridge. The noble Lord, Lord Hain, mentioned that a very large percentage of goods that travel via Northern Ireland go to Great Britain. These are goods in transit.

Noble Lords need to appreciate what we are talking about in terms of scale. In this amendment we use the phrase, “all-island economy”. I was privileged to serve as Trade Minister and Energy Minister, and I was the Northern Ireland Minister who established InterTradeIreland, which is designed to promote trade. On taking office, I discovered that neither the United Kingdom nor the Irish Republic could agree on the amount of trade that they do, and that is still the case. In 2015, the Central Statistics Office in Dublin produced a report on goods exports classified by commodity, listing where the goods were going. Exports from the Republic of Ireland to Northern Ireland accounted for 1.6% of the Irish Republic’s total exports. The CSO also produced a report setting out the percentage of imports to the Irish Republic from Northern Ireland, including live animals and food products, and that was also 1.6%.

I had to deal with these matters for years. I set up a cross-border body and implemented the outworkings of the agreement. I think that the noble Lord, Lord Murphy, and I are the only two Members still in the Chamber tonight who were involved in the agreement. He will know the heavy lifting that had to be done by the noble Lord, Lord Trimble, who is not in his place, the noble Lord, Lord Alderdice, and others to get the agreement approved. It was approved by 71.2% in a referendum in Northern Ireland. We are talking about a referendum of 52%, but we had a majority vote of 71.2%. It was a hard slog and he knows that.

I agreed with the earlier remark of the noble Lord, Lord Kerr, that the Government have not produced sufficient hardcore copy to match the proposals put forward by Brussels. He makes a fair point. Brussels has put forward 118 or so pages. I am not asking for that but I think that we have to have a counterproposal on paper. If that happens to involve technology, so be it. I have no difficulty with that and nor does the European Union. A report was recently published in Brussels by the EU’s Policy Department for Citizens’ Rights and Constitutional Affairs, which comes under the Directorate-General for Internal Policies. It sets out what are thought to be feasible proposals involving technology and other things. We already have a currency border—Northern Ireland and the Republic have different currencies—and we have different taxes, so we are not dealing simply with a one-dimensional problem.

[Baroness Kennedy of The Shaws]

My Lords, I have noticed that the discussions have concentrated on trade, and I understand the good reasons for that. However, the matter that I raised concerns the movement of people. The noble Lord, Lord Empey, is very knowledgeable about Northern Ireland and the south and so forth, so I would like to ask him how we deal with the fact that the Republic will remain part of the European Union and have free movement of people, whereas the north will not if we leave completely and are not part of the single market. How do we deal with that in the context of immigration policy? Technology cannot deal with this. Where will people’s documents be examined to see whether they have an entitlement to make the passage? Where will that happen?

[Lord Empey]

I was not responding to that part of the amendment but I am quite happy to give my opinion on it. I think that a number of measures can be achieved. First, the Republic is not in Schengen, and that is helpful. Clearly, there has to be co-operation between the relevant authorities, which there already is. Regarding immigration controls, cars are often stopped by the authorities on both sides. The guards recently arrested people who had entered the Republic from Northern Ireland whom they believed were illegal immigrants. Therefore, that works.

There is a series of measures that the United Kingdom and the Republic should take to create a disincentive. People have to have a reason for coming, and very often that reason is work. First, we should make it much more difficult to get national insurance numbers and have a much better system for that. Secondly, employers should face greater penalties if they employ people who are not there legally, and that should be done on both sides of the border. Thirdly, we should have much more detailed intelligence sharing to create a disincentive throughout the United Kingdom and the Republic of Ireland. That is something that I think we should do anyway, but it would certainly act as a disincentive.

However, if people are saying that we can put structures in place, the point is that we do not even have them today. Reference was made to smuggling. Smuggling is rife and has been for years. One has only to look at fuel smuggling—the paramilitaries have been making an absolute fortune out of it. As for the common travel area, citizens of both countries have the right to move freely between the two and that will continue. However, the noble Baroness mentioned people who would somehow be in the middle, saying that there would be a difference between EU citizens who have a right and EU citizens who do not. To get on to the island, they have to come through a port and the immigration system of the Republic of Ireland or they have to come through the United Kingdom. How many people are we talking about? I would have thought that creating disincentives for people to enter the jurisdiction illegally would be as good as anything rather than having to look at every individual who appears. I do not see that that will be a huge problem and, quite frankly, I do not think that it will affect many people.

Perhaps I may return to the amendment. We are obviously very grateful for the great support there has been for the Good Friday agreement, and it was painful to hear Members in the other place saying that the time had come to get rid of it. I have said to several people that I cannot think of a worse proposal. I cannot begin to think where we would start in trying to put things together again—I cannot even contemplate that. We have achieved something that generations failed to achieve. I make a point of repeating that and I regret the comments that have been made. However, the agreement that we are talking about and defending—the noble Lord, Lord Hain, knows my views on this—is not the agreement that we negotiated and it is not the agreement that was voted on in the referendum in 1998. It has been changed. The noble Lord, Lord Hain, did his best in 2006 to try to get things going again, and I understand why he did so, but there was a substantial change at the core of the agreement which in my opinion has led to the present impasse. However, that is for another day. Let us concentrate on the common ground, of which there is quite a lot here.

We want to solve this problem and I think that the Government have an obligation to be more precise. Quite frankly, the document of 8 December is contradictory—in my opinion, it does not really add up. People are saying that there will be the same regulations and that that will be the default position after Brexit but that, at the same time, there will be no difference in the regulations between Northern Ireland and the rest of the United Kingdom. The only logical outworking of that is that you remain in the single market, but we are not going to do that and I do not think that it is what Brexit means.

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[Lord Hain]

I welcome the noble Lord, Lord Duncan, to his post as a Minister and commend the empathy he has shown in responding to the debate, which I think the whole House welcomes.

I will not respond to the whole debate—the hour is too late—except to commend the marvellous, passionate eloquence of the noble and right reverend Lord, Lord Eames. He would be able to get me to follow him on any theological journey, which is asking a lot of me. However, I regret that the Minister has not really responded to the questions put to him. For example, the Brexit Secretary said recently that there would be no problem monitoring imports and exports between Northern Ireland and Ireland after Brexit and there would be no need for a hard border because we already do this for VAT purposes. But we can do it for VAT purposes now only because we are in the European Union’s VAT Information Exchange System—VIES. Outside the EU, we are out of that tracking system. Then, on Sunday, the Chancellor admitted that there was not an example in the world of the kind of technological open border alluded to by the Minister. Who believes for a minute that it can be done, apart from the Foreign Secretary—who thinks that South Armagh and Louth are the same as Camden and Westminster, except with more Guinness?

The Prime Minister insists that Brexit means the UK leaving the single market and the customs union, which I do not accept for a moment. We can Brexit and stay in the single market and the customs union; other countries are outside the European Union but are in either the customs union or the single market. But if she were right, the UK Government in turn would be obliged by WTO rules to enforce hard border arrangements on the island of Ireland because of the change in their relationship with the EU. Therefore, to keep the border open as it is today, there is no alternative to Northern Ireland—and, by implication, the UK—remaining in both the single market and the customs union. I regret that the Minister, despite his empathy, has not really answered that point. I will not press my amendment.

[Baroness Kennedy of The Shaws]

I beg leave to withdraw my amendment.

Amendment 161A withdrawn.