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Amendment 27

European Union (Withdrawal Agreement) Bill - Committee (2nd Day) (Continued) – in the House of Lords at 4:00 pm on 15th January 2020.

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Baroness Hayter of Kentish Town:

Moved by Baroness Hayter of Kentish Town

27: After Clause 30, insert the following new Clause—“Oversight of negotiations for future relationshipAfter section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—“13C Negotiations for future relationship(1) A Minister of the Crown must, before the end of the period of 30 Commons sitting days beginning with the day on which exit day falls, make a statement on objectives for the future relationship with the EU.(2) A Minister of the Crown may, at any time after the initial statement is made, make a revised statement on objectives for the future relationship with the EU.(3) A statement on objectives for the future relationship with the EU must be consistent with the political declaration of 17 October 2019 referred to in Article 184 of the withdrawal agreement (negotiations on the future relationship).(4) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown, and(b) a motion for the House of Lords to take note of that statement has been moved in that House by a Minister of the Crown.(5) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the most recent statement on objectives for the future relationship with the EU to have been—(a) approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) the subject of a motion of the kind mentioned in subsection (4)(b).(6) After the end of each reporting period, a Minister of the Crown must—(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the most recent statement on objectives for the future relationship with the EU to have been approved by the House of Commons, and the subject of a motion in the House of Lords, as mentioned in subsection (4), and(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that statement, an explanation of why that is so, and(b) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—(i) the Scottish Ministers,(ii) the Welsh Ministers, and(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.(7) Subsections (8) and (9) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.(8) A Minister of the Crown must lay before each House of Parliament—(a) a statement that political agreement has been reached, and(b) a copy of the negotiated future relationship treaty.(9) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown and—(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.(10) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (9) applies in relation to the ratification of that treaty.(11) In this section—“devolved legislature” means—(a) the Scottish Parliament,(b) the National Assembly for Wales, or(c) the Northern Ireland Assembly;“future relationship with the EU” means the main arrangements which are designed to govern the security and economic aspects of the long-term relationship between the United Kingdom and the EU after IP completion day and to replace or modify the arrangements which apply during the implementation period, but does not include the withdrawal agreement;“negotiated future relationship treaty” means a draft of a treaty identified in a statement that political agreement has been reached;“negotiations” means negotiations the opening of which, on behalf of the EU, has been authorised under Article 218 of the Treaty on the Functioning of the European Union;“reporting period” means— (a) the period of three months beginning with the first day on which a statement on objectives for the future relationship with the EU is approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) each subsequent period of three months;“statement on objectives for the future relationship with the EU” means a statement—(a) made in writing by a Minister of the Crown setting out proposed objectives of Her Majesty’s Government in negotiations on the future relationship with the EU, and(b) published in such manner as the Minister making it considers appropriate;“statement that political agreement has been reached” means a statement made in writing by a Minister of the Crown which—(a) states that, in the Minister’s opinion, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU, and(b) identifies a draft of that treaty which, in the Minister’s opinion, reflects the agreement in principle;“treaty” has the same meaning as in Part 2 of the Constitutional Reform and Governance Act 2010 (see section 25(1) and (2) of that Act).””Member’s explanatory statementThis amendment reinstates the oversight Clause from the original version of the Bill, providing an ongoing role for both Houses of Parliament during the future relationship negotiations.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Deputy Leader of the House of Lords

My Lords, Amendment 27 stands in my name and that of the noble Lords, Lord Wallace, Lord Hannay and Lord Bowness. I will also speak to Amendment 28, which is in almost the same names, and Amendment 40, which was tabled by the noble Lord, Lord Wigley. These amendments would essentially reinstate what had been promised in the earlier Bill: proper parliamentary oversight of the Government’s negotiating mandate and the negotiations themselves. They would also ensure proper reporting back including, crucially, on whether a satisfactory deal looks probable before the cut-off date for any extension. This is especially relevant, perhaps, if the FT is correct that the Prime Minister himself is finally beginning to doubt that all can be done and dusted by the due date.

As the Bill stands, the European Parliament will have a much greater say over the stance of the EU negotiators than we will over ours. The Minister shakes his head. His knowledge of the European Parliament is certainly longer than mine, but I think he will find that it will have a rather greater grip than we will over what happens.

Our EU Committee expressed its concern about the omission of the old Clause 31 of the October Bill, without which Parliament will have no statutory role in respect of the future trade deal, save a very limited final nod under the CRaG—and even that can be disapplied by a Minister. We have agreed before in this House that Parliament should be involved throughout the process to ensure that, apart from anything else, the talks are not heading to the rocks of no deal. But that is presumably exactly why the Government do not want us to have a role.

Despite the commitments made at the Dispatch Box by the Government before the election, they have stripped those statutory rights from this Bill—all because they have a majority of 80. The Commons was told not to worry and that Parliament would of course have a meaningful role throughout the future relationship negotiations but, as that role has been deliberately dropped from the draft legislation, I am afraid that that assurance is simply not good enough. The removal of the original Clause 31 shows how the Prime Minister can change his mind; we are simply asking for the first version of his mind to be in the Bill. Amendment 27 reinstates the Government’s own words.

Amendment 28 is slightly different; it asks the Government to update MPs and us on progress in negotiations half way through the implementation period and requires a Minister—who of course cannot mislead the House—to give an assessment of whether a deal is likely before 31 December and, if it does not look likely, to outline the Government’s approach.

Amendment 40, tabled by the noble Lord, Lord Wigley, seeks the approval of both MPs and the devolved legislatures for the Government’s negotiating objectives—a goal that we clearly share.

The noble Lord, Lord Boswell, who is not in his place, said at Second Reading that

“scrutiny is not an optional extra.”—[Official Report, 13/1/20; col. 483.]

Amen to that. If the Government will not accept these amendments, they need to explain what exactly they are afraid of and why a Government, answerable to Parliament, are deliberately cutting elected MPs, as well as your Lordships’ House, out of any meaningful role. I beg to move.

Photo of The Earl of Kinnoull The Earl of Kinnoull Chair, European Union Committee, Principal Deputy Chairman of Committees

My Lords, I spoke at Second Reading about the dropping of Clause 31, which was in the October 2019 version of the Bill and is in Amendment 27, as the noble Baroness, Lady Hayter, has just said. I thought it would be helpful to have better detail about the position for MEPs, among other things. The position is set out in Article 218 of the Treaty on the Functioning of the European Union, which says:

“agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.”

It runs through that procedure and says, in paragraph 10:

The European Parliament shall be immediately and fully informed at all stages of the procedure.”

That is further backed up by the interinstitutional agreement between the European Parliament and the European Commission, which says in part III:

“Parliament shall be immediately and fully informed at all stages of the negotiation and conclusion of international agreements”.

That is at paragraph 23. It goes on:

“The information referred to in point 23 shall be provided to Parliament in sufficient time for it to be able to express its point of view if appropriate, and for the Commission to be able to take Parliament’s views as far as possible into account.”

As a European Union Committee member, I find that the extraordinary thing that one has been able to see with MEPs over the last four years is the way in which they have started using those powers to get a good grip on the scrutiny of the process that is Brexit. The Brexit Steering Group, energetically chaired by Guy Verhofstadt—a regular on all our TV screens—is regarded as a deeply successful model. I have been told that by more than one Commissioner, by many officials within the Commission, by Guy Verhofstadt naturally, and by Michel Barnier. I have checked with various other members of the European Union Committee and they believe that to be the case. I have not checked with my noble friend Lord Kerr of Kinlochard; perhaps he will confirm his agreement. It really has been deeply successful, and the Commission members have found it good and have enjoyed the process.

There was evidence of that on Monday, when 45 pages of slides, entitled Internal EU27 preparatory discussions on the future relationship: “Free trade agreement” were published. They give a very detailed and interesting background about how the European Union is getting ready for the free trade agreement negotiations—and, boy, do I wish that we had access to a similar document, which I am sure exists, in preparation for our own negotiations.

I come back to what, in the summer of 2016, the then Secretary of State for Exiting the EU, David Davis, said to us in commenting on whether the UK Parliament would enjoy parity—that was the word we put to him—with the European Parliament during the withdrawal negotiations. He said:

“We will certainly match and, hopefully, improve on what the European Parliament sees.”

We took him at his word, and Amendment 27—which was in the previous Bill and was, after all, a government amendment—was a step in that direction. I am sure there would have been amendments to Clause 31 in that Bill as well. It seemed to me to respect an undertaking given to us by the then Secretary of State. I ask the Minister whether the Government are still behind those words said by David Davis to the European Union Committee and, if so, how they will ensure that they live up to those words.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat Lords Spokesperson (Cabinet Office) 4:15 pm, 15th January 2020

My Lords, my name is also on Amendments 27 and 28, and I wish to add my support for them. The Constitution Committee’s report, published two days ago, says in paragraph 3:

“This Bill is of the highest constitutional significance.”

One of the many aspects of that constitutional significance is as it affects the relationship between Parliament and government. As I understand it, the role of Parliament and the role of the second Chamber of Parliament—the House of Lords—in legislation is that we should present reasoned arguments and criticisms of what the Government have put forward. In response, the Government’s duty is to listen to those arguments. Where they are persuaded that those arguments are reasoned, or where they are unable to provide reasonable answers to them, they should adjust the legislation to meet those arguments.

The other dimension is that, as policy proceeds, the Government should be held to account by Parliament; there should be ongoing accountability as policy proceeds. Amendment 27 does not say that we want to know the details of everything; it talks about objectives. The Government are asked to tell us regularly what their objectives are. That seems entirely reasonable, particularly as the Government’s objectives remain so unclear and, in some ways, contradictory. On regulatory divergence, for example, I have listened to the noble Lord several times explaining the rationale for the regulatory divergence the Government are committed to and each time he explains it I become less and less convinced that the Government know what they want. I think that is partly because different elements of the Government and of the Conservative Party want entirely contradictory outcomes.

The question of the future security relationship also contains a number of unresolved internal differences. On future trade relations, we heard on the radio this morning someone with very close links to the Trump Administration saying that if we want good trade concessions in our future relations with the United States, we had better give something in return on Iran and our policy on the Middle East. There are many questions there that it is reasonable for Parliament to hold the Government to account over, and to ask Ministers to continue to justify.

The noble Baroness, Lady Noakes, in what I thought was rather an odd speech, said that we should not bother Ministers when they are in the middle of negotiations, because they will be tired and busy and we would get in the way. That seems to me, if I may say so in her absence, absurd. Parliaments are there to hold Governments to account and if the Government think they can get away without being held to account, except every five years in elections, we have moved away from constitutional and parliamentary democracy.

We heard a number of empty threats on Monday about the future of the Lords if we were to pass any amendments. There were suggestions that we were standing in the way of the people’s will and that various Members of this House perhaps represent the people against Parliament—although some of the Members of this House who put themselves forward as representing the people seem rather less popular in their backgrounds than one might otherwise expect. All I say to that is that if one faces up to the question of Lords reform—I say this as a former Minister responsible for trying to take through Lords reform—it is very difficult.

Some of us were at a meeting this morning where it was said that Lords reform and electoral reform were the two most difficult constitutional changes that anyone would wish to take through. It was implied that neither would happen in our lifetimes. That may be a bit of an exaggeration, but there is an idea that somehow, with the Express and the Mail behind the Government, threats can be made that the Lords will be abolished—and with Rebecca Long Bailey behind the Express and the Mail in threatening it. The idea that that will happen and we will all then turn quiet is out of the question. We have to do our job. We are here as a revising Chamber and it is our duty to ask the Government to revise when we are not convinced.

There is a question that all Conservatives here should ask themselves carefully as they consider how the House considers the Bill: if a non-Conservative Government were attempting to push through a Bill of this sort, which diminishes the role of Parliament in holding the Government to account, what would the Conservative response be? I think I know. I therefore strongly support this amendment and I hope the Government will recognise that, in rejecting it, they are trying to push the relationship between Parliament and Government towards the Executive and away from proper constitutional democracy.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

My Lords, to respond to the noble Lord, Lord Wallace of Saltaire, on Lords reform, I remind him that your Lordships’ House was not saved by anybody in this House. It was actually saved by Jesse Norman—who paid a serious price from David Cameron, who subsequently refused to put him into his Government—and a number of right-wingers in the Tory party. We do not have that support in the Commons any longer, so I would not be quite so laid back and complacent about the future of your Lordships’ House. It has been seriously threatened and bruises have been left.

As to the amendment, I think we have all very much welcomed the election of Sir Lindsay Hoyle as Speaker of the House of Commons. I think he will be an umpire rather than a protagonist in the Brexit debate; he certainly has not indicated which way he voted in the referendum. However, the suggestion that he will not allow any Statements or Urgent Questions on the Brexit negotiations in the year that extends before us is for the birds. The idea that the Government will have no accountability to the House of Commons—or to your Lordships’ House—on how the negotiations are progressing is just ridiculous. For that reason, it is completely unnecessary to have this stuff in the Bill; I think there will be a lot of accountability, which will be ensured by the new Speaker. There is no point whatever in putting it in the Bill.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat Lords Spokesperson (Cabinet Office)

My Lords, I assure the noble Lord that I am strongly in favour of reforming the House of Lords. I hoped when I was appointed to this House that I would in due course become an elected member for the Yorkshire region. I have now been in this House for 23 years and that has not happened. I am very conscious of the difficulties of reform.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

Yes, and the noble Lord should be very pleased with himself that he has done much to make the idea of reforming our House a significant factor, now that there is a Conservative Government with a serious majority.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

My Lords, as one of those who sponsored this amendment, I will make a few brief points. Its subject matter is very familiar to Members of this House, because we went over all this ground during the Trade Bill last year. We sent to the Commons an amendment that had very similar effects to this one, only this one is in the different context of negotiating the new relationship with the EU, and it has remained there untreated ever since. However, the view of the House was expressed by a very large majority, with support from all corners of the Chamber.

This negotiation with the EU, which will go far beyond purely the trade area, must do so because, if we allow the non-trading goods areas that are at stake—I will not list them, as it is a very long list—to go over a cliff at the end of this year, when we have only a trade agreement, that would be pretty disastrous. It is a very important and wide negotiation, and it is perfectly reasonable to try to set bounds to the rules of the road in legislation about how the Government will relate to both Houses of Parliament during its course. I do not think there is anything unreasonable in this.

Moreover, as my noble friend Lord Kinnoull pointed out, drawing attention to the European Parliament’s position, which is completely different, it would be pretty anomalous if this Parliament, which is meant to be taking back power, had much less influence over this negotiation than the European Parliament. That is not a very happy situation; it was one that existed during all the negotiations of the last few years and did not turn out terribly well. I do not quite understand why the Government are fearful of subjecting themselves to this fairly reasonable amount of oversight and mandating when they have a very large majority in the other place, which will of course prevail in support of the Government’s views on how the negotiations should be conducted.

Yet they tabled the text that we now have before us when they could not be sure of that at all. That is a bit odd as well; I think I can understand perfectly well why it has happened, but it is still odd. This is not only about the European Parliament. For example, one of the major trade negotiations not covered by the Bill will be with the United States, where Congress will play a far greater role than the one that the Government envisage for this Parliament. That is also pretty unhealthy.

I went to a briefing meeting held by the noble Lord, Lord Callanan. I am most grateful to him for it; he has been extremely assiduous in briefing us on the Bill. In reply to a question on this issue, he said, “That doesn’t matter much because we’re just going back to what existed before.” I am not sure that “back to the future” is this Government’s motto, but it is nevertheless worth remembering that when he says that we will go back to what was there before, he means what was there 50 years ago. Neither this Government nor any British Government have conducted a trade negotiation for 50 years. To suggest that the world has not moved on in the oversight and mandating of trade negotiations is simply to close your eyes to reality. So I really think that there is a case for this amendment.

Finally, I can at least take comfort from the fact that the Minister will not be able to rise to his feet and tell us how badly drafted the proposal is because he drafted it himself.

Photo of Lord Liddle Lord Liddle Labour 4:30 pm, 15th January 2020

My Lords, I support the amendment moved by my noble friend Lady Hayter. I particularly support the speech of the noble Earl, Lord Kinnoull. He is already establishing himself in this House as an excellent chair of the EU Select Committee, succeeding a previous excellent chair. My only regret is that I am no longer on that committee to serve under his chairmanship.

In my experience from my four years on the committee, the attitude of successive Secretaries of State towards the committee was always one of good will but they made promises they never kept. At one stage, we were told, “Oh yes, every month you’ll see me and I’ll come to answer your questions.” My recollection is that we saw David Davis at intervals of perhaps five months during his time as Secretary of State. I think that we saw Mr Raab once; I might be wrong about that. Mr Barclay was the most attentive towards the committee. He seemed keen to improve in the next phase of the EU negotiations on his own degree of accountability. He saw maximum transparency in the conduct of the negotiations as being in the Government’s interests. I am sorry that No. 10 has decided to go for breach of promise on all this. That is a great shame.

Whenever the issue of the European Parliament’s rights to scrutiny is raised, you get a vigorous shaking of the head from the Minister, the noble Lord, Lord Callanan. I would love to hear his explanation of why those rights are not what we all know them to be. He seems to reject the notion that the European Parliament has many more rights than the British Parliament to access information and question officials to find out what is happening, but that is the case. The role of the European Parliament was greatly strengthened by the Lisbon treaty, and again by the ECJ judgment to make it easier for the Commission to negotiate on the EU’s behalf on services as well as on goods. It has also been strengthened by the brouhaha over the Canada agreement; a stronger role for Parliament clearly would have prevented the difficulties that the agreement then ran into in its ratification in member states. I think it is in the Government’s interests to be more transparent.

Yes, Brexit is happening—as I said in my Second Reading speech, I fully accept that—but the Government do not yet realise what trade negotiations are really like, because they have not done them for half a century. Having served for three years in DG Trade, or at least in the cabinet of the Commissioner, I can tell you that they are brutal. The people in charge of the EU side in these negotiations stand up for EU interests with tremendous firmness. I suspect that this is what we will encounter once we have allowed ourselves to become a third country, which in a few weeks we will be. They will treat us like any other third country.

One has to be transparent about the trade-offs. I will cite just one example. How do we rate the relative importance of the fishing and car industries? The fishing industry has tremendous political profile and thinks that as a result of Brexit it will get much more fishing in British waters and that we can keep continental boats out—but it represents 0.5% of GDP. How much are we prepared to sacrifice in our negotiating position for the fishing industry? The car industry employs up to 1 million people in this country, when you look at the supply chain. If we do not achieve the kind of customs partnership that Mrs May said she was in favour of, there is a real risk that inward investment by the overseas companies that rebuilt the car industry in Britain will go elsewhere over time. There has already been a lot of talk of that on their part. This would be a devastating blow to one of Margaret Thatcher’s main achievements in the 1980s and 1990s in being able, as a result of creating the single market, to attract to Britain huge amounts of foreign investment, which has greatly benefited our people. I repeat: 1 million jobs.

If there is not transparency, how do the Government explain to people that they are not guaranteeing the future of 1 million jobs but have put all their negotiating eggs in the basket of trying to give a few more opportunities—not actually saving any jobs—to our fishing? We need openness if we are to have a proper debate in this country about where our interests lie. That is what we need in the coming 12 months if we are to have any hope of a harmonious outcome to these rushed negotiations.

Photo of Viscount Trenchard Viscount Trenchard Conservative

My Lords, I will comment on the views of the noble Lord, Lord Liddle, about the European Parliament and the relative degrees of parliamentary scrutiny. He has much more experience of Brussels; I have worked there, but not for nearly as long as he did. It is not correct to say that the European Parliament’s rights in this matter are greater than the United Kingdom Parliament’s. Article 218 of the Treaty on the Functioning of the European Union states that the European Parliament must be kept

“immediately and fully informed at all stages of the procedure”, but does not give it a role in deciding the substance of the negotiations. However, it must pass the final agreement by a simple majority vote. So it has to agree at the end, but it appears not to have the right, stage by stage, to dictate to the Government what they are to do as they negotiate.

Photo of Lord Liddle Lord Liddle Labour

I never claimed that. I claimed that the Parliament was so fully informed that it had a grasp of the trade-offs that it would have to make in deciding whether to vote for this deal at the end of the day.

Photo of Viscount Trenchard Viscount Trenchard Conservative

As far as I understood, the noble Lord said that the European Parliament had much more say in dictating the mandate, but perhaps I misunderstood him. In any case, it appears that during the last three years the UK Parliament has been exercising power to control the Executive, and the Executive have not been seen by their interlocuters on the European side as having the right to negotiate, because all the time noble Lords opposite, and others, were saying to individuals in Brussels, “Don’t worry, Parliament isn’t going to allow the negotiating team to do this. We will reverse it.” Now the people have spoken and the House of Commons has a strong majority of 80 Conservative MPs, all committed to a real Brexit. That is known. This amendment is designed to obstruct because the House of Commons will not accept it, and noble Lords know this well.

Photo of Lord Wigley Lord Wigley Plaid Cymru

My Lords, I very much agree with the points made a moment ago by the noble Lord, Lord Liddle. In Wales during the 1970s, 1980s and 1990s, we were fortunate enough to attract more than 200 American companies and more than 50 Japanese companies to invest in Wales, largely through the work of the Welsh Development Agency. They came to Wales in order to sell to the European market: there is no question about that, and therefore these questions are of mainstream importance to the National Assembly for Wales. That is why Amendment 40, standing in my name, covers the matters involved in Amendment 27 and brings into the loop a role for the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly. I concur very much with the points made by the noble Baroness, Lady Hayter, in opening this debate.

Amendment 27 provides, in subsection (4) of the proposed section entitled, “Negotiations for future relationship,” that:

“A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless … a statement on objectives for the future relationship with the EU has been approved by the House of Commons.”

My Amendment 40 extends the same principle to the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly.

The lead Amendment 27 does indeed bring in the three devolved legislatures, to the extent that it provides that copies of the proposed progress reports should be provided for each devolved legislature, and to the relevant Ministers of those three nations. The general arguments in favour of my amendment are similar to those for Amendment 27, so I will not repeat them. I support everything stated by the noble Baroness, Lady Hayter. However, I will again press that the devolved legislatures should be fully in the loop and that their approval should be obtained. They have as valid a right to be in the picture as Members of the European Parliament; it impacts directly on their work.

I realise that the Government may withstand the whole concept of getting prior parliamentary approval for their negotiating position with regard, say, to trade in sheepmeat, but they contend that the Government can negotiate exactly what they like, and they have it in their power to do so. In reaching their negotiating position and their proposals, they will no doubt have discussed their strategic objectives with their ministerial colleagues in charge of sheepmeat issues in England. It would be amazing if they were not to do so; indeed, it would be a chronic dereliction of duty. But, unless a provision along the lines of Amendment 40 is brought into play, the government team in charge of negotiating with the EU on the future sheepmeat trade will be totally ignorant of the views of Wales, Scotland and Northern Ireland. These need to be systematically built in.

Agriculture is a devolved subject. The Government have repeatedly stressed that they are not in for a power grab and are not going to reverse the devolution of power. If that is so, the UK negotiating team must surely be duty bound to take into account the views of the National Assembly and the relevant Welsh Minister on a subject of such overwhelming significance to Wales as the future trade in sheepmeat.

This issue brings into sharp focus the question of co-operation and mutual respect between the UK Government and the devolved legislatures. A failure to take this on board and to make the necessary provision to answer it will only reinforce the growing feeling in Wales, as in Scotland, that the UK Government are basically the Government of England, and that it will be the needs of England that dominate the negotiations with the EU on our future trade relationship with Europe.

Photo of Lord Bowness Lord Bowness Conservative 4:45 pm, 15th January 2020

My Lords, I support the amendment. I would adopt many of the arguments put forward by my co-sponsors, and I shall not repeat them. I put my name to it because I believe, perhaps naively, that it ought to be self-evident that Parliament should have a particular and special role in holding the Government to account during the vital negotiations that will determine the United Kingdom’s future relationship with the European Union. The pledge to establish a free trade agreement tells us little or nothing about this. I raised a number of questions at Second Reading, which I will not repeat because I got no answers to them then, and I would not anticipate an answer this afternoon.

I emphasise that the amendment does not attempt to delay or stop Brexit; it would not even delay the passing of the Bill in time for 31 January. As for my noble friend’s reliance on Select Committees, Questions and debates, I submit that those are no substitute for a formal recognition of the special circumstances of the negotiations we are about to enter.

The parliaments of Denmark and Sweden, to name but two—

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

Surely all that can possibly happen in the House of Commons is that the Government make Statements on their position in the negotiations with the EU. That will happen anyway, if the Speaker allows it. How would putting it into the Bill make the slightest difference?

Photo of Lord Bowness Lord Bowness Conservative

It would impose an obligation. I bow to my noble friend’s knowledge of the workings of the House of Commons, but it seems to me that there is probably a very compliant majority at present, so we need safeguards in the legislation.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

The majority in the House of Commons only counts if there is a vote. There are no votes on Statements.

Photo of Lord Bowness Lord Bowness Conservative

That still does not seem to me to obviate the need for full information to be given to both Houses of Parliament. I suspect that my noble friend is implicitly accusing me of trying to delay the Bill or to stop Brexit, rather than being concerned about the future of our relationship. I refute that allegation, but I entirely accept that I remain very concerned about our future position.

I apologise for hesitating slightly here, but my noble friend has rather thrown me—which was, no doubt, his intention. I appeal to my noble friends on the Front Bench to recognise that we all accept that we are leaving, but that some of us want to ensure that we retain as many as possible of the benefits of 40 years, and that they are not all lost just to satisfy the ideology of a clean and absolute Brexit. Those of us who think that way may be in a minority, but we are a substantial minority.

I apologise to my co-signatories to this amendment for my following comments. They are not intended to undermine the amendment or the arguments that they have put forward but I accept that the amendment was drafted at a different time, in different circumstances, and is very long. Arguing from my position, I ask the Government—it may be a vain hope—to give serious consideration to discussing whether there may be a simplified formula in the Bill which people such as I—and they—might find it possible to accept. It would be a gesture of good will to those of us who are not ideological Brexiteers. At the moment that good will is in pretty short supply and I hope that we might see it. I certainly hope that it will break out during the negotiation period.

It may be a vain hope but it is a serious suggestion that we endeavour to find a clause which would be acceptable to those of us with differing points of view across this House.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, I say to the noble Lord, Lord Bowness, that I have nothing but good will towards him despite our profound disagreements on Brexit.

It has been a pleasure for me in our Committee proceedings up until now to be able to support my noble friend Lady Hayter but, sadly, at this point I have to part company with her. I cannot agree with her or my very good friend the noble Lord, Lord Wigley, that their new clauses are appropriate. They are in effect seeking to substitute the House of Commons for the Government. Under their proposals, the House of Commons would give the Government their marching orders as they move into these negotiations and the Government would be expected to act as an agent of the House of Commons. That is constitutionally inappropriate and will not work well in practice. We saw in the last Parliament the damage done to our national endeavour by the insistence of the House of Commons that it must take charge of the process of negotiation. It was a disaster for us.

When it comes to setting objectives, there is no alternative but to trust the Government. The Government will have to make judgments as they negotiate and the objectives they set for themselves at the beginning may well have to be modified in the light of their assessment of what may be achievable.

I do not think that the analogy the noble Earl, Lord Kinnoull, suggested between the procedures and powers of the European Parliament and the way for us to proceed in our system of parliamentary government is appropriate either.

Openness—the transparency that my noble friend Lord Liddle was calling for—may be difficult, if not inappropriate, in the circumstances of a complex, lengthy and difficult negotiation in which it may not be prudent for the Government to make public what they are thinking of doing and the ways in which they intend to set about it. As the noble Lord, Lord Hamilton of Epsom, reminded us, the House of Commons and your Lordships’ House will have ample opportunities to express their views and to hold the Government to account, not least through the work of the Select Committees of your Lordships’ House.

I support the intention of the noble Lord, Lord Wigley, that the Government should be expected to maintain a full and constructive dialogue and full consultation with the devolved Administrations. We debated that principle yesterday and again in our first debate this morning.

It is very important not only for the benefit of our union—fragile as it is at the moment—but for reasons of practicality and of ensuring that outcome of negotiations makes realistic sense in terms of the situation in Wales, Scotland and Northern Ireland. I would not go as far as the noble Lord, Lord Wigley, or be as prescriptive as him, although I note there is a certain vagueness in the way he has formulated his paragraphs on the requirement for consultation. I think he takes it a bit too far, for the reasons I have given.

There may well be moments in the process of negotiation when the Government consider that it would be helpful and in our interests that they should lay out their position very fully to the House of Commons and seek its endorsement, but that needs to be a tactical judgment in the light of the way events develop. I do not think it is wise for us to seek to tie the Government’s hand and inhibit their freedom in conducting these negotiations as best they can in the interests of our country.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

The noble Lord, Lord Howarth, finds the amendment positively undesirable. I think it is quite difficult for the Government to argue their case, since the amendment merely reinstates what was in their October version of the Bill, so in October the Government must have thought this perfectly workable and not subject to the objections raised by the noble Lord, Lord Howarth, who obviously thinks that the Government were a bit soft then.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

It was desperate expedient. The Government had no option, given the parliamentary arithmetic.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

That is the point I wanted to touch on. I thank the noble Lord. I have gone through the Conservative manifesto very carefully and I cannot find any commitment not to keep Parliament fully consulted on the process of the negotiation. It seems to me that we are not in serious Salisbury convention territory here.

The substantive arguments against this amendment, rather than the politically cynical argument against it advanced by the noble Lord, Lord Howarth, is that it weakens the Government’s hand in negotiation. I know from my past career that that is completely untrue. It is the reverse of the truth. I spent quite a long time unsuccessfully trying to negotiate air services liberalisation with the United States. The arguments for it were easy. Even I could win the argument, but I could get nowhere because of the power of parliament used as a negotiating weapon by American negotiators: the power of the Senate to refuse. When you win the argument with the American, he says, “You make a very good point, but we’d never get it through on the Hill.” I do not believe that Parliament as the Wizard of Oz would be a terrible threat to the Government, provided they had explained what they were trying to do. I know that being obliged to keep Parliament informed is an extremely good weapon in the negotiator’s hand.

I come back to a more general point, which has been made many times in these debates by the noble Lord, Lord Bridges, and which was made by the noble Lord, Lord Barwell, in his remarkable maiden speech which we all greatly admired. Honesty—not pretending that you can have it all and admitting that there are trade-offs to be had—goes with transparency, and it seems to me that this perfectly reasonable means of ensuring a degree of transparency to Parliament, which was perfectly reasonable and acceptable to the Government in October, would be consistent with trying to bring public opinion to understand some of the difficulties and trade-offs that lie ahead in the negotiation.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

Can I put it to the noble Lord that he was not actually arguing to what this amendment provides? He was arguing for transparency and for negotiators to be able to use in their negotiation the tactic of saying, “We’ll never get it through Parliament”, or, “We’ll never get it through Congress”, but that is different from what this amendment prescribes, which is that the objectives which the Government would have in their negotiation must have been approved by the House of Commons at the outset. That is a different proposition.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

Given the majority in the House of Commons, it is not a terribly high hurdle. In a way, this is an obscure debate as we know what the answer is going to be—the Government can get their way in the House of Commons. It is odd for the Government not to want to strengthen their negotiating hand by having a procedure of this kind—or a simplified version, as the noble Lord, Lord Bowness, hinted at. To have something like that would strengthen their hand and provide them the means of ensuring that the country is brought along to understand the trade-offs that will have to follow.

Photo of Lord Wilson of Dinton Lord Wilson of Dinton Crossbench 5:00 pm, 15th January 2020

My Lords, I am pleased to follow my noble friend Lord Kerr.

This is all about power. The Government are in powerful position at the moment. I say “at the moment”, because it will not last. We know that the pendulum swings, and that power is fluid and leaks away. The arguments for the amendment are good, but I am more concerned about good government. My experience is that Governments, when they are at their most powerful, are in a kind of vacuum, and this is a time when mistakes are made. This is the year when the Government will plant the seeds of their own failure, and I am in awe of their task over the next year.

I date back from the time when we did trade negotiations ourselves. I was a gofer in the Board of Trade on the Kennedy Round. I was in charge of knitting needles, aspirin and canned fruit at various times. I was also Private Secretary to the then Minister for Trade, the late Lord Brown of Machrihanish. I am familiar with trade negotiations from that earlier period, and I can confirm that the noble Lord, Lord Liddle, is right: trade negotiations do not bring out the nice side of other people; they bring out the tough, rigorous side.

Although the Government are powerful in this House, and in politics, they are not necessarily going to be strong in the negotiating room. They need the support of Parliament, and they need friends. They will have more friends if they consult and if they are open, because the analysis needed for trade negotiations —on services and the other areas that are so important to this country—will involve groups of people, Scotland and Wales, and sectors. The Government need to be open and use their power with maturity. They need experience, they need to be open, they need to recruit friends and heal. The trouble is that the bruises are too recent, which colours some of these exchanges.

The Government must work with Parliament, with noble Lords, and be open to understanding the hugely different currents and flows that will underlie these negotiations. If they think they know all the answers and can ignore the sovereignty of the Queen in Parliament, and just be the Crown, they will make some awful mistakes and the country will suffer for them. I urge the Minister to take these amendments, and the arguments that lie behind them, seriously.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

Is the noble Lord arguing that there will be no reporting by the Government to Parliament on the negotiations if this is not in the Bill?

Photo of Lord Wilson of Dinton Lord Wilson of Dinton Crossbench

I am not arguing that. I am worried that the Government’s powerful position, and their glee and joy, which is understandable, will lead them to a certain arrogance and to ignore the role which Parliament can properly play. These amendments are a good reminder of the role that Parliament must play. I urge the Government to work with Parliament, with noble Lords and with influences that can be brought to bear behind the scenes, to listen and not to think that they know all the answers and can just go in and negotiate, because they cannot.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I should like to briefly follow that very powerful speech by my noble friend Lord Wilson of Dinton. The spirit of the amendment tabled by the noble Lord, Lord Wigley, is about consultation. It is about making sure that people behind the scenes know what is happening and can understand if they have to give something up rather than it being delivered on them.

The Senedd, the National Assembly of Wales, has responsibility for a set of devolved competences. When negotiations become difficult and tough, it is almost inevitable that at times people will have to give things up. If people in Wales, behind the scenes, know what is happening and understand why, they can support it. If something is just delivered on them as a fait accompli afterwards, trust is lost. There is a Chinese saying that I think we should remember: trust arrives on foot and leaves on horseback—and it is trustworthiness in behaviour that wins trust.

The Joint Ministerial Committee on EU Negotiations was set up with promises by the Government to seek consensus over approaches behind the scenes—yet, sadly, I understand that sometimes the committee had no more information than could be found in the previous day’s newspapers. Sometimes those attending were told that they could not be told more because it was not in the public domain. If there is a small group of people whom you are taking into your confidence and you trust them to observe that confidence, it is not helpful for them to be told, “You can’t be told what’s going on because it isn’t in the public domain”—because the role of that group is to share that confidential information and thinking before the next round of negotiations.

The spirit of the amendment tabled by the noble Lord, Lord Wigley, completely encapsulates a need: where devolved competences are at stake and will be deeply constitutionally affected, it is only right that the devolved Administrations are involved and that their thinking is sought early on, so that they can explain it both to their own legislatures and to the people who voted them into office.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I support Amendments 27 and 28, and I would have put my name to Amendment 40 had I seen it before the deadline. This is a sad day for me, not just because these amendments are necessary but because today I have disagreed very strongly with the noble Lord, Lord Howarth. We have sat together companionably for six years. He is like a human form of Wikipedia. He knows everything that there is to know about all noble Lords and this saves me from having to use my phone.

Returning to the amendments, I hope that Hansard has a copy and paste function, because, quite honestly, we have been over this time and again. Noble Lords have said the same things to the Government again and again, and at one point it seemed to have sunk in, because the European Union (Withdrawal Agreement) Bill last year contained a whole load of provision for parliamentary scrutiny. I know that the Minister will reply to us with his tried and tested lines that we have heard before—but, quite honestly, that is not enough. The election has changed things and now the Government have gutted the agreement Bill of all scrutiny. I say to the Minister that, just because his Government now have a majority in the other place, that does not make them right or mean that this is the right thing to do. It does not make them immune from parliamentary scrutiny. Our job is to hold the Government to account, and if they scrap us—well, actually, I have been trying to abolish the House of Lords for six years and it has not worked so far.

Is it not obvious that a lack of parliamentary engagement—a failure to bring the majority on board—is what led to the parliamentary deadlock when the final deal was secured? Instead of working with Parliament, the Government told us that there would be no running commentary and that the sharing of details would undermine the negotiations and so on. Scrutiny was deferred until the very last stages of the negotiations when, instead of it being a mere inconvenience, it culminated in a crescendo of chaos. Had the Government engaged constructively with Parliament, things could have turned out very differently. However, despite all those lessons, the Government are, once again, trying to sideline Parliament.

Over the coming weeks and months, much will be made of the Salisbury convention and the extent to which this House should exercise its powers and functions to scrutinise, correct and improve. My stomach slightly turned over when the noble Lord, Lord Howarth, said that we had to trust the Government. Well, actually, no, we do not. It is our job to trust when it is appropriate to trust and to distrust when we can see that they are going wrong. When the Government try to shut down scrutiny in the way they have with this amended Bill, it leaves this House with no choice but to exercise its constitutional might as far as that extends. The last stage of the negotiations was the easy bit. It is the next stage that is going to set out all our future concerns. That negotiation must be got right, and this sovereign Parliament absolutely must play its role in securing that for the national interest.

Photo of The Bishop of Leeds The Bishop of Leeds Bishop

My Lords, I think that the context has changed. When the Benn amendment went through, it was suspected of having the intention to thwart or delay Brexit. We are not in that position now: Brexit is going to go ahead. Surely, then, it is the job of the whole of Parliament to defend and promote its own interests and those of the Government in the negotiations going forward. So, in a perverse way, this amendment strengthens the hand of the Government by bringing in Parliament to back it and provide support as they embark on their negotiations; it does not diminish it.

Photo of Baroness Wheatcroft Baroness Wheatcroft Conservative

My Lords, I wish to support Amendment 27, and at this stage in proceedings I will be brief. I found it endearing when the noble Lord, Lord Howarth, said that we must place our trust in the Government. I tend more to side with the noble Lord, Lord Wilson of Dinton, on this. The Government have made it very clear that their version of taking back control is to do their best to shut out Parliament as far as possible. We need only to look at the illegal attempt to prorogue Parliament to see that in action. Why, if they were very keen for us to be involved in the trade negotiations, would they go to the trouble of taking out of the Bill the clause that would have given us that involvement? It might be right—as the noble Lord, Lord Hamilton, said—that we should put our faith in the Speaker of the Commons. But, again, why should we do that when we could have the safety of having our own involvement on the face of the Bill?

My second point is quite straightforward. I find it embarrassing when this House is threatened that trying to do its job will result in a potential threat to its survival. We have a very simple role: it is scrutiny—not to thwart the will of the Commons but to ensure that we improve legislation. We can improve this piece of legislation. We should do that, and if we do not have the courage to do that because we are worried about our own survival, we do not deserve to survive.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, I am going to make a rather cynical contribution to the debate. The debate has brought out very clearly the difference between accountability and a mandate. I am not in favour of the Government’s hands being tied by Parliament in these negotiations. I agree with the noble Lord, Lord Howarth, that it is for the Government to conduct these negotiations, not for Parliament. We will have the opportunity to comment and to give our views, and we should. We certainly should not be cowed from doing that.

However, I will quote a recent example that I really think establishes this point. The Government unexpectedly, before the election, got an agreement with the European Union that the European Union always said that it would not make. How did they get it? They did it by making a concession on the Irish Sea that they would never have got through Parliament. They made a concession which they had said they would not make—but they found it necessary to do it, and when they had done it, Parliament and the electorate came to the conclusion that it was the right thing to have done. If Parliament had been able to control what the Government were able to do, the Government would not have been able to make that concession.

We might be cynical about that concession—we might think it was the wrong thing to do—but it was the thing that got the agreement and that was necessary to get the agreement. Certainly, the Government will need friends in these negotiations, but they will also need flexibility, and Parliament should not seek to take away that flexibility.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

I would like to point out two matters. First, in new Clause 13D(2)(b) and (c) in Amendment 28, there is the requirement that a Minister must provide

“a declaration of whether, in the Minister’s opinion, agreements can be concluded and ratified before IP completion day”, which seems to be in the nature of a prophecy required from the Minister as a matter of compulsion, and

“the policy of Her Majesty’s Government if agreements are not concluded and ratified before IP completion day.”

Once again, that is nothing to do with saying what is happening; it is giving an opinion as to what is to happen next, which as far as I am concerned is the difference between the two.

Secondly, in Amendment 40 tabled by the noble Lord, Lord Wigley, which is commended to be in very good form by my noble colleague, one of the requirements is that

“A Minister of the Crown may not engage in negotiations on the future relationship with the EU” unless a statement of objectives has been made and the Motion relating to that statement has been approved by resolutions of the various devolved Parliaments, including the Scottish Parliament. I just wonder whether that is wise.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union) 5:15 pm, 15th January 2020

Amendments 27 and 28 in the name of the noble Baroness, Lady Hayter, and Amendment 40 in the name of the noble Lord, Lord Wigley, would all introduce new clauses with a similar purpose. They seek to create statutory roles for Parliament, the devolved Administrations and the devolved legislature in overseeing the future relationship negotiations. It is the view of the Government that the general election has shown that the public support the vision of the political declaration for a comprehensive and ambitious free trade agreement with the EU, and indeed this gives us the mandate to begin negotiations.

As this House will be aware, under the Royal Prerogative the negotiation and making of international trade agreements is a function of the Executive, as indeed in the EU it is a function of the European Commission, a point well emphasised by the noble Lord, Lord Howarth. This enables the UK to speak with a single voice in negotiations and ensures—

Photo of Lord Bowness Lord Bowness Conservative

Just in the interests of clarity, is it not true that the European Commission acts on a mandate from the Council—that is, the elected heads of government?

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

Yes, it is. I am not quite sure what point the noble Lord is making. It usually acts on a mandate although it is not clear to what extent or what detail will be provided in that mandate.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

If I can help the Minister, the point that my friend the noble Lord, Lord Bowness, was making is that the Minister said it was in the hands of the Commission. He has now said that it is in the hands of the Council, which is correct.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

As the noble Lord is well aware, it is the role of the Commission to do the negotiating. It will report back to the Council and the Council will provide steers on how it will do that, but the detailed negotiation is a matter for the European Commission.

Photo of Lord Liddle Lord Liddle Labour

There is a meeting every fortnight of officials from member states that monitors what the European Commission is doing.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

There is not a direct analogy between the position of the UK and that of the EU. The UK is one member state and the EU is 28—shortly to become 27—member states. My point is that this enables the UK to speak with a single voice in negotiations and ensures that partners can have faith that the Government’s position is the position of the United Kingdom.

It goes without saying that the Government will of course support Parliament in fulfilling its important role in scrutinising the actions of the UK Government in the negotiations. Both Houses will have all the usual arrangements for scrutinising the actions of the Government. I find incredible the statements that have been made about how little a role Parliament will have to play in these negotiations. This House alone has spent over 650 hours on debates on EU-exit-related themes since the 2016 referendum—believe me, from my point of view sitting on the Front Benches, it has sometimes seemed even longer. I find it difficult to believe that noble Lords will not want to question and interrogate me or whichever other Minister is in my place at the time on these negotiations. Indeed, committees of this House have already published three reports on this Bill after fewer than 10 sitting days of this Session.

Let me address the points made by the noble Earl, Lord Kinnoull, and the noble Lord, Lord Liddle, on the role of the European Parliament and the famous Article 218. The noble Baroness, Lady Ludford, is sadly not in her place but we have served in the European Parliament and know the reality of these matters. It is important not to draw unhelpful comparisons between the Commission which, as I said, negotiates on behalf of the 27 member states, and the UK Government on how negotiations are conducted. The information provided by the Commission to the European Parliament is carefully calibrated to not put the EU at a disadvantage in the negotiations. The detail of what information shall be provided to the Parliament is left entirely to the discretion of the European Commission.

The European Parliament will, as this Parliament often does, try to insert itself into the negotiations and want to influence their conduct through its various committees and organs. That is entirely right. It happens in the European Union and I suspect it will happen in this country as well. However, we need to be careful not to overstate what Article 218 does. It is not specific on reporting requirements and that compares very well with the Prime Minister’s commitment to keep Parliament fully informed about the progress of these negotiations. Article 218 does not specify what documents will be available or when.

Of course, it also bears saying that this Bill is not the final word on engagement between Parliament and the Government. As I indicated to the noble Earl, Lord Kinnoull, when we met and as I have said a number of times, the Government will want to start a process of discussions with Parliament into exactly how the various committees and organs in both Houses will scrutinise the work of the Government in this area. In our view, there is no need to set out bespoke statutory reporting requirements in the Bill or impose a statutory duty on a Minister to provide public commentary on the likely outcome of confidential negotiations at a fixed point, as was proposed in Amendment 28. In our view, this risks seriously disadvantaging negotiators acting for the United Kingdom.

I also note that setting out requirements of this type in legislation might well not have the desired effect, as an attempt to pre-empt outcomes and timings can be easily overtaken by events. Let me give the House an example. Last week, I delivered an update in this House on the Government’s negotiations and on Article 50, as required by Section 13 of the European Union (Withdrawal) Act 2018 and the Benn Act which many Members in this House spent many hours telling us was essential. For that debate, which took place at 10.30 in the evening, virtually the only people in the House to debate these matters were myself and the noble Baronesses, Lady Ludford and Lady Hayter. Many of the Members who insisted on passing the Benn Act and introducing these statutory reporting requirements did not trouble themselves to come along and take advantage of the legislation they had passed. There were only three speakers in that debate, myself and the two noble Baronesses.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Deputy Leader of the House of Lords

Does the Minister agree that he did not actually cover the negotiations but covered only why that requirement was no longer needed? He did not touch on the negotiations at all.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

The noble Baroness makes my point very well. The reason why I did not was because there had been no further negotiations since that legislation was passed. There was nothing to update the House on. It illustrates the point that it is bad legislation, and bad to set out these precise timetables in legislation. There needs to be flexibility on behalf of the Government and of course on behalf of Parliament. Of course, the changes to domestic law required by the future relationship treaty will require legislation for their implementation. This will mean, of course, that Parliament will have its say, just as it is having its say on this Bill and on the amendments. It should be noted that the key powers provided by these clauses would be given to the House of Commons. Last Wednesday, MPs rejected a similar power in an amendment in Committee by 344 votes to 255. Noble Lords are welcome to ask the other place to think again about what powers it should have, but I am confident of what its response will be.

Photo of The Earl of Kinnoull The Earl of Kinnoull Chair, European Union Committee, Principal Deputy Chairman of Committees

I am sorry to interrupt the Minister. I should have said a big “thank you” for the time he spent with me on this topic in his cosy office. I am afraid that there will be a bit more time spent as well. I was very keen that he cover two things. First, he covered his view of Article 218, but he did not go at all into the interinstitutional agreement, which really expands, quite dramatically—I read it out—on what the European Parliament receives automatically. It is not having to ask for it—it receives it automatically, which is quite a big difference. Nor did he comment at all on what David Davis had said to us about parity of information, which is a different point in fact than that made by the amendment. I was really asking the Minister to comment about whether the parity of information pledge made by the then Secretary of State in the summer of 2016 was still current.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

I did not cover that specifically. The noble Lord quoted the document—I have it in front of me—and it refers to the Commission providing early and clear information to Parliament. It is not specific on what information exactly should be provided and at what stages; its very nature is that of an interinstitutional agreement attempting to cover a whole range of different scenarios. My point is valid: the Commission controls what information is provided and when. With regard to his other point, the pledge still holds, essentially. The Government are committed—the Prime Minister said it—to provide as much information as is possible to Parliament to enable it to provide its proper scrutiny, without conflicting with the necessity to conduct a lot of these negotiations in confidence as we do not wish to prejudice our negotiating position.

I know the noble Lord, Lord Wigley, will be very keen to hear my point about the devolved Administrations. We are firmly of the view that it is the responsibility of the UK Government to negotiate on behalf of the United Kingdom. Nevertheless, we recognise the specific interests of the devolved Administrations in our negotiations with the EU and their responsibilities for implementing that legislation in devolved areas. We have been clear that the devolved Administrations should be closely involved in preparations for the negotiations, and will continue to engage with them extensively. Indeed, only last Thursday I attended the 21st meeting of the Joint Ministerial Committee on EU Negotiations, where we had a constructive—as they say, full and frank—exchange of views with the Scottish and Welsh Governments and, at the time, the Northern Ireland Civil Service. Now that we have an Assembly up and running in Northern Ireland, I am sure it will want to contribute to these negotiations as well.

I chair one of the joint ministerial committees; I have been up to Scotland many times to take part in these sessions and my noble friend Lady Williams has also attended them. A number of UK Ministers go and there is regular dialogue with all the devolved Administrations, both on the negotiations and, up until now, on ongoing EU business. That will continue and we are looking at how that should develop and be taken forward when we are no longer an EU member state and we move on to the implementation phase. We are committed to ensuring that we have the best deal for all parts of the United Kingdom. The devolved Administrations are, of course, free to engage with their own respective devolved legislatures as part of this process, but the delay that would be caused by creating unnecessary powers of veto could, in our view, frustrate our ability to finish negotiations by the end of the year.

We believe that the Government have a mandate to begin the negotiations and there is no need to introduce additional hurdles or delays before those negotiations can begin. I hope the noble Baroness and the noble Lord, Lord Wigley, will therefore feel able not to press their amendments.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

I think the Minister referred earlier to anything that is agreed being preceded by the CRaG process to ratify or conclude it. It is hard to believe that the sort of agreement the Government seek and which, as he rightly says, they have support for seeking will not include such matters. Does he not agree that if anything that is in an agreement includes changes to the UK’s domestic law, it will require primary legislation before it can be concluded? Can he just be clear on that?

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

I did not hear the first part of the question, but if the noble Lord was asking me whether I agreed that some parts of the agreement may well require domestic legislation to implement, the answer is yes.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Deputy Leader of the House of Lords 5:30 pm, 15th January 2020

My Lords, there are two parts to what we have been talking about. One is about the mandate and the other is about oversight of the ongoing negotiations. As I think has just been clarified, the EU Commission negotiators seem to manage very well by being given a mandate from elsewhere —that is, from the Council—and reporting back there, so it really should not be difficult. The Minister seemed to be quoting the Treaty on the Functioning of the European Union by saying that the European Parliament did not have the powers that other noble Lords have suggested. I think he will find that there is an institutional agreement going rather further, and that is what gives it the grip.

During the discussion on the mandate, my noble friend Lord Tunnicliffe, who of course is an old hand at negotiating, said that his definition of the mandate that he used to work with was “Whether I’d get away with it”. It sounds as though our Government are trying to do that, which is rather the problem. Given that the Government have a majority of 80 in the other place, I really do not see what they are afraid of by our requiring that they should put the mandate, and report on the negotiations, to a House where they obviously control the numbers. They cannot be that afraid of your Lordships’ House, so it is slightly hard to imagine why they are so resistant to this.

The noble Lord, Lord Hamilton of Epsom, championed the existence of Statements. Those work quite well for someone like me on the Front Bench, because I get my fixed and protected time to question a Minister when they come with a Statement. But if there are only 10 or 20 minutes, or even 40 minutes, on a Statement for Back-Benchers when this House has a plethora of real experts and we are talking about something as detailed as negotiations, our Statements at the moment do not really provide the sort of scrutiny that your Lordships would expect on such a vital matter.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

Does the noble Baroness not accept that the Opposition has Opposition day debates as well, which can spell this all out at much greater length?

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Deputy Leader of the House of Lords

I do, absolutely, but I was referring particularly to experts. I will try not to offend my colleagues now, but many of those experts do not sit on my Benches yet are absolutely in that part of the House that we so value. We have great experts from not just international negotiations but industry and trade. They do not just sit in the Opposition and do not have the grip to be able to take a debate like that. Even if what the noble Lord, Lord Hamilton, suggests were written into the Bill, there would be a day’s debate every month or two, or that sort of thing. We think it important to have more than just a Statement without a vote, particularly in the other place.

The grip is needed to make sure that this happens. Until my noble friend Lord Liddle said so, I had not realised that not every Secretary of State was as good at turning up—although I remember an occasion when one Secretary of State did not turn up twice, having been expected by the EU Committee. Again, offers of good will are perhaps not quite sufficient.

What is important in this came in the example about America—I think it was from the noble Lord, Lord Kerr—but also from the right reverend Prelate the Bishop of Leeds. Parliamentary approval actually strengthens, not diminishes, the Government’s stance; that is worth listening to. The taking back of control was meant to be by Parliament, not just by the Government, but we are surely at our strongest where the two work together. The noble Lord, Lord Wilson of Dinton, said two things. One was that when the Government are strong, they can make mistakes; he also urged the Government to work with Parliament, not set themselves against Parliament.

The noble Lord, Lord Bowness, suggested that a simplified version of what we tabled might be more acceptable to the Government. I urge the Government not to turn their back on that. The Minister will have heard, with only a couple of exceptions, the real feeling that we will do our job best if we can do it in a way that is written into the Bill. We will then be confident that the negotiations will be able to fully engage this House and, more importantly perhaps, the other House as this vital matter continues. I have a feeling that we will return to this on Monday or Tuesday but, for the moment, I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

Amendment 28 not moved.

Clauses 31 and 32 agreed.

Clause 33: Prohibition on extending implementation period

Debate on whether Clause 33 should stand part of the Bill.

Member’s explanatory statement

Removing this Clause would prevent the prohibition on extending the implementation period.

Photo of Lord Newby Lord Newby Liberal Democrat Leader in the House of Lords

My Lords, Clause 33 amends the withdrawal Bill to debar any Minister from agreeing to an extension of the implementation period beyond 31 December this year. Such a possible extension is provided for in article 132 of the withdrawal agreement, which says that

“the Joint Committee may, before 1 July 2020, adopt a single decision extending the” implementation,

“period for up to 1 or 2 years.”

My co-signatories and I object to this clause standing part because we believe that ruling out an extension of the implementation period in all circumstances is impractical and against the national interest. We do not believe that it will be possible to negotiate a comprehensive agreement covering trade, security and the other issues covered by the political declaration by the end of the year and, this being so, the logical and sensible thing to do is to allow for the possibility of an extension.

Why do we believe that such an extension will be necessary? I will concentrate on trade, although reaching agreement on other matters such as security will be equally contentious and time-consuming. What is the evidence that it will be impossible to conclude an agreement on time? Let us first be clear about what we mean by “on time”. The EU will decide on its negotiating mandate next month, so no talks will be possible at all until towards the end of February. The withdrawal agreement makes it clear in article 184 not only that the negotiations have to be concluded by the end of December but that ratification has to take place before the end of the year, so that the negotiated agreement can come into force, as far as practically possible, by 1 January next year.

Any comprehensive agreement will be a so-called mixed agreement, which will require it to be ratified not only by the EU Council and the European Parliament but by all national Parliaments and a number of regional assemblies. In the case of the Canadian trade agreement, the one we are told is closest to what the Government now have in mind, ratification itself took over five years. But to be very generous, let us assume that it might be possible within two months. This would mean that the agreement must be concluded by mid-October, giving a maximum of eight months for the negotiations.

It is well known that all trade negotiations, so far in human history, normally take years to complete. The Canadian agreement took more than five years, for example. The Government rightly claim that these negotiations will be different because we are already in full trade and regulatory alignment with the EU, so it will be easier than starting from scratch. While this may be true, it is absolutely clear that the negotiations will not be straightforward.

The head of the Commission, Ursula von der Leyen, said last week in London that it would be impossible to reach a comprehensive deal within the timetable. Even the Prime Minister yesterday said that, while he thought reaching a deal would be “epically likely”, he did not rule out the possibility of a failure to do so because of, as he put it, a possible

“complete failure of common sense.”

I looked up “epically” because, when I first read it, I thought it was a spelling mistake—it is a word that I have neither seen nor used before. It does not mean what the Prime Minister thinks it means. It means

“in a lengthy, grand or important way”.

He is in fact more correct than he probably realises, because this will definitely be done “in a lengthy way”.

What evidence is there to support the Commission’s view and to doubt the Prime Minister’s breezy optimism? It is worth looking at the Canadian deal to get some clues. First, despite the fact that that deal took many years of negotiation, it does not even give full tariff and quota-free access, something that the Government say is absolutely the first building block of what they are looking for. In the case of Canada, there remain quotas on poultry, eggs and meat and tariffs on beef, pork and wheat. This difficulty over agriculture is before we get to the even more difficult issue of fishing rights. The idea that we can easily reach agreement is simply false.

Secondly, on services, according to the Government’s own estimate produced in the document that we were allowed to read only by submitting our phones and going into a windowless room in January 2018, the Canada deal includes over 550 individual restrictions on the trade in services. Yet the Prime Minister says he wants the deal to cover all services. It might be possible in some areas, but the idea that there is a possibility of agreeing 550 concessions that were impossible to reach with Canada within the period that he is discussing is wholly implausible.

More generally, the Government want to minimise the cost of trading with the EU. This assumes a particular importance, because it applies not only to trade between the UK and the EU but also, now, to trade between Great Britain and Northern Ireland. We had a fascinating debate last night on the amendment of the noble Lord, Lord Hain, in which he sought assurance that there would be no restrictions on trade between Northern Ireland and the rest of the UK— restrictions, incidentally, that are envisaged, and indeed set out, in the Northern Ireland protocol. The Minister, the noble Lord, Lord Duncan, made a valiant attempt to argue, in line with the Conservative election manifesto, that there will be unfettered trade, but could not give a definition of “unfettered” consistent with the terms of the Northern Ireland protocol, which clearly provides for customs and other checks. Incidentally, “unfettered” is now the word when it comes to trade. For how many years, and how many hundreds of times, have we heard the Minister talk about “frictionless” trade? How much of a tactical retreat “unfettered” is from “frictionless” is an interesting semantic issue. There is something in it, but the fact that the Government are not even pretending that they are trying to seek frictionless trade says something.

The noble Lord, Lord Duncan, who was masterful—as was his Sir Humphrey-inspired brief—had to admit that achieving even unfettered trade across the Irish Sea would not be straightforward. This means that it will take time. If noble Lords wonder whether the kind of checks that may well be necessary in future between Northern Ireland and Great Britain and between Great Britain and the EU matter, I would direct them to the impact assessment produced by the Government on 21 October last year to coincide with the publication of the withdrawal agreement Bill. On customs declarations alone, HMRC produced estimates of administrative costs—nothing to do with tariffs—of between £15 and £56 per declaration for goods going from the UK to the rest of the world.

That is before the considerably greater costs that will be incurred in checks on any agricultural products. If at least some of these potentially crippling costs—particularly crippling to small businesses that currently trade only with the EU—are to be reduced, and it is very important that they are, there will have to be extremely detailed and no doubt contentious discussions, and they cannot be done quickly.

The likelihood of a comprehensive agreement being reached by mid-October then looks vanishingly small. Does this matter? What are the consequences of leaving without such an agreement? If we leave without such an agreement, there are two possibilities. Either we leave with no agreement at all—the so-called “crashing out” option, which we have discussed exhaustively over the last couple of years and which your Lordships’ House has consistently agreed would be disastrous for the economy and many other aspects of our lives—or there might be a so-called “bare bones” agreement. This possibility has been acknowledged by the Commission. To me, “bare bones” sounds quite businesslike and potentially attractive, but in practice it means an agreement that covers only tariffs and quotas and leaves all other aspects of the deal—not only trade in services but other issues such as security co-operation—still to be agreed. While this would be better than crashing out, it would be, again, potentially extremely damaging. Such a deal would give the EU tariff-free access in goods, in which it has a balance-of-payment surplus with the UK, but would leave the UK with nothing on services, where our exports to the EU are worth £90 billion—almost twice as much as our total exports of goods and services to the US—and where we have a large surplus with the EU. In these circumstances, our service industries would be at an immediate disadvantage from 1 January next year, and there would then be no pressure whatever on the EU to do a deal covering them.

In both scenarios, an extension of negotiations would clearly be in the national interest. The only third option, in the event of a failure to agree a comprehensive agreement by October, would be for the Government to negotiate an amendment of the withdrawal agreement to agree an extension of the implementation period, notwithstanding the current cut-off date of 31 June, and then to amend this legislation along the lines of that amendment. This would be, in one sense, what the Government did twice last year to extend the Brexit date for further negotiations and to get the legislation through Parliament. But in that, as in the other two scenarios, having the current Clause 33 in the Bill is simply unhelpful. It is unnecessary and potentially damaging to the economy, our security and the national interest. It should be deleted now.

Photo of Lord Bridges of Headley Lord Bridges of Headley Conservative 5:45 pm, 15th January 2020

My Lords, just before the noble Lord sits down, I quickly ask him something on a point of information. He spoke for 10 minutes and did not mention two words: “Salisbury convention”. I am sure he knows that, on page 5 of the Conservative Party manifesto, there is a clear commitment not to extend the implementation period. Does he agree that this amendment is in contradiction to the Salisbury convention?

Photo of Lord Newby Lord Newby Liberal Democrat Leader in the House of Lords

No, because it does not require the period to be extended at all. If the Prime Minister is correct and we pass this amendment, there is absolutely no let or hindrance to the Tory party manifesto being adhered to. Deleting this clause will, I fear, make the Prime Minister’s life easier. He should welcome it.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, I associate myself with the remarks made by the noble Lord, Lord Newby, and indeed with the remarks I suspect will be made by the noble Baroness, Lady Hayter. I will not go into the detail of the matter because it has been very eloquently argued by the noble Lord, Lord Newby. I will confine myself to three general points.

The first is that the position that the Government are now taking in the Bill is wholly inconsistent with the position that we took before the general election. We are entitled to know why, as a matter of substance rather than political guile, the Government are moving from a position previously expressed to that now expressed in the Bill.

Secondly, following a point made by the noble Lord, Lord Newby, I say that this prohibition is bogus because we all know full well that a Government with a majority of 80 in the House of Commons can, if they so choose, reverse a provision in a Bill—as they did, for example, on the Fixed-term Parliaments Act. If that is true, then anybody who says that this will help the Government in their negotiations with the European Union is talking nonsense, because the European Union interlocutors will know as well as we do that this provision can simply be set aside.

I come to my final point. I have been involved in negotiations, both as a politician and as a lawyer, for 40 years, and I believe in the importance of flexibility. In the last debate, a number of noble Lords talked about the importance of giving the Government flexibility and not tying hands. The noble Lord, Lord Howarth, was one; the noble Lord, Lord Butler, was another; and a third was my noble friend Lord Callanan, who made the point that events can overturn outcomes and things can happen which are surprising and destroy timelines. That is going to happen if we impose an arbitrary timetable. What could well happen—indeed, what is likely to happen—is that the Government come back with either weasel words and an amendment of the statutory time; or we get a partial and incomplete agreement, or an unsatisfactory agreement, or no agreement at all. If we had more time, the situation could be perfected.

This is a profoundly unwise provision in the Bill and we would do well without it.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, I will not repeat the arguments that I put to the House at Second Reading in support of Clause 33 and the ruling out of an extension of negotiations beyond the end of this year, but will just make two points now. I was surprised that the noble Lord, Lord Newby, who, as I recall, once held the economic brief for his party, appeared not to recognise the profound damage to our economy that the prolongation of the Brexit process has already caused. It has now been three and a half years, during which it has been very difficult for rational participants in our economy to make investment decisions or decisions of other kinds. Our economy is now in a fragile condition, and it cannot be in our national economic interests to perpetuate this process any further than is absolutely necessary. For that reason, it is highly desirable that investors should be able to look forward with some confidence to the conclusion of the negotiations about the future relationship by the end of this year.

That brings me to my second point. Again, I was puzzled as to why the noble Lord, Lord Newby, considers that a bare-bones agreement would cover only tariffs and quotas. I cannot see why the essential elements of all the necessary agreements cannot be negotiated between now and the end of the year. Personally, I would be quite relaxed if some technical fine-tuning were still needed subsequent to 31 December, and indeed I accept that the multiple process of ratification across the European Union will take some time. If we can achieve the certainty provided by a resolution of the key issues by the end of the year, that can only be helpful, 2and if the Government reaffirm their determination on that point in the form of Clause 33, that will also be helpful.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, the noble Lord, Lord Callanan, in his arguments against Amendment 27, said that it would be easily overtaken by events. That provides a great argument for the removal of Clause 33. The noble Lord, Lord Newby, pointed out correctly that the next deadline point is 1 July 2020. I confess that I looked at a website to check, and that is 168 days away. If you add in holidays, weekends and so on, and think about how many days that gives us to reach a point where we have to decide whether or not we are ready for the deadline of the agreement with the EU, it is a very short time indeed. The noble Lord, Lord Howarth, said rightly that the economy and companies—I am particularly concerned about small businesses—have been greatly damaged by the uncertainty around Brexit. Removing Clause 33 will take away another point of uncertainty and will give us stability instead of yet another deadline.

Earlier in Oral Questions, my noble friend Lady Jones referred to the false classification—subsequently withdrawn—of Extinction Rebellion in a police document as bringing the law into disrepute. Particularly among young people, it caused grave concern. As the noble Lord, Lord Newby, said, passing this Bill with Clause 33— with something we know the Prime Minister has accepted may have to be removed; we know that a one-line Bill can do that at any point up until 31 December—brings the law into disrepute.

There is also the risk of a crash-out if we get to the end of the year and do not have an agreement. There is a strong suspicion out there in the country—and perhaps among some in this House—that parts of the Government still seek that crash-out outcome. Leaving this clause in the Bill adds to that suspicion.

Finally, we know that the Prime Minister has found it very difficult to find ditches in this country; it has been very hard to identify ditches. I do not think that we want the Prime Minister to waste any more time roaming the country, seeking that ditch that he just cannot find.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, can I ask my noble friend a question? If he were negotiating any sort of agreement and learned that the other side had a self-imposed time constraint, would he not regard that as a huge advantage?

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour

My Lords, the noble Lord, Lord Newby, made an unanswerable case. Human beings have been conducting negotiations since the beginning of time, and over that period there have been certain common conclusions about the sort of approach to negotiations that leads to a favourable outcome and the sort that, on the whole, does not. That is part of the common wisdom of humanity. Part of that is that you are at a great disadvantage in any negotiation if you have time constraints greater than those of your counterparty. What we have here is a Government who want to impose on themselves a time constraint greater than that which applies to their counterparty, which is most extraordinary. Mr Johnson may feel that, after all these millennia, he can revolutionise human psychology, and that the conclusions that have been drawn from human experience up until now are no longer valid. I have had quite a lot of experience of negotiations in my life, both as part of a team and from conducting negotiations myself as a diplomat, as an investment banker, as a Minister and so forth. I know that most of those common wisdoms of humanity are valid and correct, and one veers away from them at one’s peril. If somebody behaves entirely irrationally, as appears to be the case in the Government at the moment, one has to ask whether there is perhaps some Machiavellian plot behind the behaviour that explains this irrationality. That is what worries me, because the obvious explanation of Mr Johnson’s behaviour is that he does not want a successful outcome at all. He wants a hard Brexit or a bare-bones solution. He does not want to say so; he does not want to take responsibility for saying so.

A bare-bones solution would leave out altogether these very important issues of our relationship on security matters with the rest of the European Union, the future of the common arrest warrant, the pooling system of information exchange, and so forth. It would leave out a number of very important matters that appear in other amendments on the Marshalled List today: such things as the Euratom relationship, the European Medicines Agency relationship, the future rights of British subjects living abroad to receive their full pensions in the country in which they have taken residence, and the availability of medical cover to British people finding themselves elsewhere in the European Union. All these are very important matters and of course they would be set aside at a stroke if there were a bare-bones solution. There would be no chance of regaining those benefits. It could be that Mr Johnson actually wants that outcome and does not want to be held responsible for the consequences—human, economic, et cetera—of that solution.

Whether or not my hypothesis is correct, one thing is quite certain: the Government’s attitude to this will produce a lot of suspicion. There will be a serious suspicion of bad faith on the part of Mr Johnson and his Government, a suspicion that they are not being quite clear about their objectives in this matter. I can think of nothing worse in terms of poisoning the atmosphere of these negotiations than that suspicion, so I think the Government owe it to themselves to now be very frank and transparent and explain to us why this irrational measure has come forward at all. If it was included in the manifesto, why was it included, and why are the Government still holding to it? Without an answer to that question, the accusation and the suspicion of bad faith will persist.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Deputy Leader of the House of Lords 6:00 pm, 15th January 2020

My Lords, at Second Reading I mentioned my “I told you so” speech that I have already prepared for when the Government have to come back and seek some additional time to negotiate the future relationship, the complexity of which we have heard about from my noble friend and others in this debate.

I am not an expert on negotiations, but I hear from those who are that they are not simple. They are brutal, according to my noble friend Lord Liddle in the last debate; tough and vigorous was how the noble Lord, Lord Wilson, described them; and fixed deadlines tie one’s hands too much. Indeed, my noble friend Lord Davies of Stamford said about fixed deadlines at Second Reading on Monday that,

“the one thing you do not want to do is to tell your opponent that you are in a terrible hurry. It also means that you cannot use certain ploys … You cannot walk out for two or three weeks … You cannot try to halt proceedings while you undertake a study of a particular subject”—[Official Report, 13/1/20; col. 513.] which could be a very difficult subject. The noble Lord, Lord Boswell, described this as the high-wire approach to negotiations.

For a Government who have resisted sensible amendments on the basis that they would tie the hands of negotiators, the prohibition on extending the transition period seems a bit nonsensical. Let me be clear, since not all reports have been entirely accurate, that we know we are leaving the European Union at 11 pm on 31 January. Our objection to the clause is nothing to do with the date of Brexit but is because it places an unnecessary constraint on our negotiators. Why would we tie the hands of our negotiators if another few hours or days could get a better deal over the line? Our EU Committee says that concluding talks by December will be “extremely challenging” and warns—this is something we need to know—that should no extension be agreed by July, it is not clear there is any legal route under the withdrawal agreement to extend it, whether by days or weeks, for whatever essential reason. So that one-line Bill may not actually work: it may work in this Parliament but not on the other side of the negotiations.

Not only that, but the new free trade agreement might need its own implementation period. Processes for customs and VAT, physical checks, rules of origin regulations and schedules—which will be enormous, with all the paperwork—licences and permits, contracts and new systems will need to be set up. Mrs May understood this well and chose the December 2020 date accordingly, but assumed it would be 20 months from when we left. It is now only 11 months from when we leave to the December deadline, but with equally challenging demands—indeed, probably more challenging, given the different regulatory and technical rules on opposite sides of the Irish Sea as a result of the new withdrawal deal. It is very hard to understand why the date for the end of the implementation period has not been changed now that we are leaving in January 2020, rather than in March 2019. The original timeline would have allowed the implementation of the deal, and we now simply do not allow for that.

There is an understandable fear that the hard deadline is not to force the EU to move at speed but because, as the noble Baroness, Lady Noakes, who is not in her place at the moment, helpfully clarified on Monday, a time limit has an “implicit no-deal outcome”. That may be what it is all about, as the noble Baroness, Lady Bennett, and my noble friend Lord Davies have suggested.

One small point on a different issue is that while the Bill disapplies CRaG, it has been pointed out by legal experts in Scotland, I think, that this does not seem to apply to the related EEA, EFTA and Swiss agreements, which were implemented under Clause 6. This means that CRaG continues to apply in those circumstances, so time might be needed for these agreements to pass through CRaG. Will the Minister respond to that issue raised by the Scottish Law Society?

The Government’s majority of 80 leads them to think they do not need to take account of this House. I do not understand why they still seem to need to take account of the ERG, for whom this clause has clearly been inserted. This is unnecessary, as we heard from the noble Lord, Lord Newby. Removing Clause 33 does not undermine the manifesto, because we can still leave and end the implementation period on 31 December. However, as I also said earlier in the week, we will let the Government take ownership of this. We will leave the EU shortly, but on their head be it if the negotiations mean they have to come back to ask for more time. In that case, we will give it with a smile, but also possibly with an “I told you so” note.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

I am grateful to the noble Lord, Lord Newby, the noble Baroness, Lady Hayter, my noble friend Lord Hailsham and others who have contributed to this debate. I think the key point was made by noble friend Lord Bridges: the manifesto on which my party won the election that delivered a substantial majority for this Government was absolutely explicit in ruling out any extension to the implementation period. The general election has clearly shown that the public support that vision. I say gently to the noble Lord, Lord Newby, that his party put forward an alternative vision that was comprehensively rejected by the public. This clause implements that provision. It binds the Government to this commitment by enshrining in statute that Ministers may not agree to the extension of the implementation period beyond 2020.

I reassure noble Lords that in the withdrawal agreement both sides—we and the EU—have committed to using their “best endeavours” to negotiate a future partnership. Moreover, both the EU and the UK committed to agreeing a deal by the end of 2020 in the political declaration. It is worth quoting from paragraph 135, which says that,

“it is the clear intent of both Parties to develop in good faith agreements giving effect to this relationship and to begin the formal process of negotiations as soon as possible after the United Kingdom’s withdrawal from the Union, such that they can come into force by the end of 2020.”

This clause provides both parties absolute clarity on the timetable for negotiations. This will help ensure that our negotiations can progress at pace and that we have our future relationship agreed by December 2020. It is in the interests of the UK and the EU to agree a deal that supports the flow of goods, the provision of services and business being done. That is what we are going to do.

In sum, this clause delivers on our manifesto commitment to the British public not to extend the implementation period beyond 2020.

Photo of Viscount Hailsham Viscount Hailsham Conservative

Would my noble friend tell the House whether he thinks there are any negotiating advantages that flow from this clause?

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

It definitely concentrates the minds of both parties. As I said, it has been explicitly agreed in both the withdrawal agreement and the political declaration, as I have quoted, by us and the European Union.

It will ensure that we can move on with negotiating a future relationship with absolute clarity on the timetable. For this reason, the clause must stand part of the Bill. With regard to the questions of the noble Baroness, Lady Hayter, about the EEA and the Scottish Law Society, I will write to her.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I am sorry to interrupt the Minister, but what has worried me in listening to this debate is what happens if there are impediments to negotiations from the other side which absolutely cannot be resolved by 31 December. Do the Government think that they may have to leave without a deal?

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

No. As I have just said, we very much hope that both sides will be able to reach an agreement. Both sides have committed to do so. I quoted the section in the political declaration whereby we and the EU have committed to getting the negotiations finalised and coming into force by the end of 2020.

Photo of Lord Newby Lord Newby Liberal Democrat Leader in the House of Lords

My Lords, the Minister has in a sense just given the game away. They “hope” to reach an agreement. The Commission has said that it is impossible. The Prime Minister said yesterday that it was not inevitable. The key question which this amendment seeks to address is what happens if you cannot get to that point. When asked whether this could mean we leave without a deal, the Minister said no. So what happens if there is no deal? Is he accepting a bare-bones deal? I do not remember seeing that in the Conservative Party manifesto.

The Minister has done nothing to reassure me that there is anything in the Government’s approach that makes reaching a deal in this timetable even vaguely possible. In those circumstances, as I said in my speech, I do not believe that it is in the interests of anyone—neither economically nor in terms of the national interest, given the security and other issues covered by the political declaration—for the Government’s hands to be tied by law in this way. Therefore, I am wholly unpersuaded by the Minister. For today we will not put this issue to a vote, but we will return to it.

Clause 33 agreed.

Clauses 34 and 35 agreed.

Amendment 29 not moved.

Clause 36 agreed.

Clause 37: Arrangements with EU about unaccompanied children seeking asylum

Debate on whether Clause 37 should stand part of the Bill.

Member’s explanatory statement

Omitting Clause 37 would ensure the continuation of the refugee children and family reunification provisions of the European Union (Withdrawal) Act 2018.

Photo of Lord Dubs Lord Dubs Labour

My Lords, I will argue that Clause 37 should not stand part of this Bill. I think I have had three sets of discussions with Ministers about this, for which I am enormously grateful: once on the phone and twice in meetings face to face. I am grateful for the time they have given me. Indeed, I was quite flattered on one occasion that there were three Ministers and seven officials—I thought the odds were just about even on that one. At any rate, I have had plenty of chances to make my points.

Regarding the Salisbury convention, as it was mentioned in the last discussion, it is fairly clear to me that it would allow us to move this amendment—to do what we like—on unaccompanied child refugees, because they were not given any mention in the Conservative Party manifesto. Indeed, it was quite a shock to many of us when we saw the Bill that Clause 37 was there at all, as we had had no previous warning.

Members of this House will be fully aware, and there is no need for me to spell it out in too much detail, of the appalling conditions of children in Calais, in what was formerly the Jungle, or on the Greek islands. Their conditions are desperate. These young people are vulnerable to criminality, prostitution and trafficking; they are in a terrible plight. I have never argued that Britain can take them all. Of course not. All I have argued is that we should take our share of responsibility along with other countries. However, we have a specific responsibility where the children have family here. Clearly, we should support the right to family reunion.

Let me explain briefly how we have got to this position, although most Members of the House will be aware of it. In the 2018 Bill, this House passed an amendment to the effect that family reunion should be retained even after we have left the EU—a right that was established within the EU under the Dublin treaty. There was a big vote in this House and it was passed. When the proposition got to the Commons, the Government accepted it and it became law in the 2018 Act. There it stands, and would have stood until we came to this provision in the Bill.

The Government have given a number of reasons why Clause 37 should stand. I am bound to say, without making too much of a debating point, that when someone gives four or five different reasons for doing something, it weakens the argument. One always tends to think that too many excuses do not add up to a more powerful case. As I shall go on to argue, I have come across at least five excuses or reasons for Clause 37. One is that Parliament should not bind the Executive; another that the 2018 Act was not right for it anyway and that therefore this is not the right Bill; another that there is no need for legislation anyway, as it can all be done via Immigration Rules; and it is best to avoid the potential for legal challenges. There are no doubt others, but I am afraid that, together, I do not find them all that convincing.

One of the alarming consequences of this provision is that, as it is now, there are young people in Calais who have been sent the pretty dangerous signal that Britain does not want them to come here and join their families. The Minister will deny this, but, admit it, if Britain does not want it, the awful thing is that more young people will take the illegal route on the back of lorries to come to Britain.

The Minister will also talk about the thousands of children that we have taken. My understanding is that 90% of the figures that the Minister will give us are children who have come to Britain illegally because there was no legal safe path. It is clear that, if we wanted to rejoin our families, as any of us would in that position, and there was no legal path, we would seek any means of doing it. By having this provision here we are simply encouraging the traffickers and causing alarm to those who might benefit from the family reunion policy. Family reunion is one of the few safe legal routes for unaccompanied children in Europe to find safety. That is why there is a provision in the Dublin treaty. As I said, the Government will have a figure of how many have come since 2010—I think it is about 35,000; it may be more—and our view is that probably 90% of them have reached Britain illegally. We still look after them of course, because we are that sort of country.

The Government have said that there is no need at all for legislation and that therefore we do not need the provisions in the 2018 Act. First of all, the only way in which we could argue the case for family reunion continuing after we have left the EU is by moving an amendment—what else can we do? We can implore the Government to do it, but it seems to me that the right thing to do was to move the amendment. It worked, because the Government accepted it at the other end. The Government will now say, “Ah, but an immigration Bill is on its way, and that is the right place to put it”. I only quote what Ministers have been saying. The immigration Bill may or may not be the right place to put it, but we have not got it yet. We do not know whether any of this will be in the scope of that Bill. So arguing that we should accept Clause 37 because there is another way of doing it seems slightly doubtful.

Further, at one of our meetings, the Immigration Minister said, “We don’t need this in legislation anyway. It should be done under the Immigration Rules”. First, we in Opposition, as individual Members of the House, have no influence on the Immigration Rules. We must accept them as they are when they come forward. We cannot move an amendment to the Immigration Rules. As I understand it, that is not how Parliament can deal with them. So our hands are tied. In any case, the Immigration Rules cannot cover our relationship with other countries for the sake of getting the children over here. Again, that is not the way forward.

There was an awkward moment when the Minister said that the Government have given a verbal undertaking and asked whether I do not trust them. I find that difficult. Of course I trust individual Ministers who give me their word, but I must say two things. First, they may be promoted out of their jobs next month and may not be there to answer on this issue; they may be answering on other things. I hope that they are all promoted, but there is no assurance that the people who give me their word today will be the people who have to answer on this later on.

Also, I am not talking about individual Ministers, but on certain elements concerning refugee children the Government have not fulfilled their trust. I hate to go over old arguments, but my amendment that sought for unaccompanied children with no family here to come to Britain—it became part of the 2016 Act—originally contained the figure of 3,000. It was dropped because of financial privilege in the House of Commons but, nevertheless, I was assured by the then Immigration Minister that the Government would stick by the letter and spirit of my amendment. Then the Government said, “We can’t have more than 480, because local authorities don’t have any more places”—a fact we have challenged on many occasions. To put it simply, to believe the Government all the time is not too easy. Although I trust implicitly the word of the three Ministers I spoke to, I had to say to them, “I don’t trust the Government fully on this.”

Another argument is quite dismaying: when the Government say that they want flexibility in negotiations, I still find it difficult to accept that they will use unaccompanied child refugees as bargaining chips. The Government will say, “Not so”, but I quote from a letter that the noble Baroness, Lady Williams, sent to many of us about a week ago:

“The new clause 37 in the EU (Withdrawal Agreement) Bill is primarily about clarifying the role of Government and Parliament in negotiations. It is right that the statutory obligation to negotiate previously contained in section 17 of the Withdrawal Act is removed and not retained by this amendment, so that the traditional division between Government and Parliament be restored, and the negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas.”

It seems that the Government want to use unaccompanied child refugees for the purpose of negotiation. The Government may have meant a more limited form of negotiation—that is, to say that they will negotiate on behalf of child refugees with family here in the same way that EU countries could then agree to take any children here who have family elsewhere. If that is it, okay, but that is not what the letter says. Talking about “full flexibility” and

“an appropriate manner across all policy areas” is a pretty wide statement. If the Government withdraw that, I will understand, but I do not like the idea of children being used as bargaining chips.

Of course, at Second Reading, the noble Lord, Lord Callanan, talked about removing the obligation, to avoid legal challenges. The Government worrying about legal challenges suggests that they are doubtful about whether they will meet their legal obligations.

I mention bargaining chips but there is another point here, which we discussed in the previous debate. If the Government do not want to be tied by legislation in negotiations, which seems to be the argument against accepting Clause 37, how do we have Clause 33, which we have just debated, on a prohibition on extending the implementation period? I do not argue with its merits, which have just been debated, but it seems that the Government are saying, “Yes, Parliament can, through this legislation, tie the hands of the Government”, yet they should not be doing so in relation to unaccompanied child refugees. It does not seem to stand up.

Further, the Government have said that they have already approached the EU on this matter. So they have seemingly started negotiations. I understand that a letter went to the EU but nothing has come back. I thought that the negotiations were not due to start until after the end of this month. Well, if they want to start negotiating, fine, but that seems to be the position.

I find myself in a difficulty here because, for all the words they utter about supporting child refugees, the Government are turning their back on them. Clause 37 has attracted a lot of publicity, mainly on the part of people who are concerned about what this means and why the Government are being negative about child refugees. I am sure that individual Ministers do not want to be; the provision is indeed very limited. At a peek, it simply says that if a child in an EU country—I am talking mainly about refugees in northern France and in Greece, particularly on the Greek islands—has relatives here, surely it is right that we should make provision for them to join their relatives. Surely that is the very minimum that a humanitarian country can say. What is better than family reunion for child refugees who otherwise must stay in appalling conditions or make their way across the channel?

Finally, I believe that the British public are essentially humanitarian in their instincts. I believe that, when the argument is put, they support the idea that we should be generous as regards child refugees—as I say, not taking them all, but taking our share of responsibility, particularly where family reunion is concerned. I believe that a measure such as the one I am putting forward will have the widespread support of the British people, which is why I am happy that the amendment is here. I hope that the Government will find the ability to support it, even at this late hour.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench 6:15 pm, 15th January 2020

My Lords, my name is on the amendment because I regard it as the most important matter of honour that we must deal with in the Bill. The whole House admires the stamina with which the noble Lord, Lord Dubs, has pursued this issue. I declare an interest as a trustee of the Refugee Council, which was run by the noble Lord for many years and still runs on Dubs energy and still gets his constant support.

On this issue, the House was persuaded by the noble Lord’s arguments in 2016, and again in 2018. We are now in a curious position where the Government say that the 2018 provision is undesirable and needs to be replaced with this new one. The most important thing about the Government’s proposed new Clause 37 is that it kills Section 17 of the 2018 Act. What is the difference between the two? The 2017 Act laid on the Government the obligation to “seek to negotiate”—not to negotiate, because we cannot do that because a negotiation has two sides—a deal for these children. Everything else in the proposed new clause is the same as in Section 17, except that we now find that the Government must make a statement to us on what their policy is.

I am not terribly worried about the Government’s policy here. I believe the assurance given by the noble and learned Lord, Lord Keen, at Second Reading, that the Government’s policy has not changed. I believe that the Government want this to happen. However, I am not clear about what priority the Government attach to it and I am very suspicious that they wish to use it as a negotiating card. That is what is most alarming to me and, to be honest, most disgusting. The fate of these children should not be seen as a matter for negotiation.

The noble and learned Lord, Lord Keen of Elie, on Monday night made one substantive argument against this amendment, apart from saying that government policy has not changed—on which, as I say, I believe him. He said:

“It is vital that the Government are not legally constrained in those discussions.”—[Official Report, 13/1/20; col. 554.]

Implicitly, that means that the Government might not wish to pursue this and might wish to try to trade willingness to do this for some concession by the other side. That seems particularly offensive.

I support everything the noble Lord, Lord Dubs, said, particularly about the argument that the noble and learned Lord, Lord Keen, did not use on Monday night but that one hears in the corridors: that there is no need for this provision here and it would be better placed in the immigration Act or in Immigration Rules. The noble Lord, Lord Dubs, has demolished these arguments, but I add one more to his. The provision in law now, Section 17 of the 2018 Act, and the provision in this clause—the Government’s new language—are about reciprocal obligations. We would be negotiating to get the other 27 to agree to take unaccompanied children who are in this country and would like to be reunited with their families somewhere in the 27. That clearly is not appropriate to Immigration Rules or the immigration Act, because it is about people leaving the country, but it is highly appropriate to the negotiation about to start. That is why it should be in this Bill. I support the amendment.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 6:30 pm, 15th January 2020

My Lords, I too have my name to this amendment. The noble Lord, Lord Dubs, has been very measured, as ever, in his introduction to this debate and it seems the noble Lord, Lord Kerr, gives an unarguable analysis of the position.

I have said of other provisions of this Bill and of the Conservative manifesto that they are dog whistles. If somebody thought that this was a useful dog whistle as a replacement for the 2018 legislation, they got it wrong. Like the noble Lord, Lord Dubs, I believe that the concern in this House for unaccompanied asylum-seeking children reflects public concern. We see them as children and seekers of asylum, not as immigrants whose numbers are to be kept down, and not as in any way other.

The Minister, the noble and learned Lord, Lord Keen, at the end of our day of the Queen’s Speech debate said that Section 17 of the last Act was no longer appropriate because the negotiations have already been started by other states. I cannot read into Section 17 that it refers to those negotiations. The noble and learned Lord is far too skilled a lawyer and wedded to good law to be comfortable with dog whistles in the form of legislation, and I am sure the same goes for the noble Baroness, Lady Williams of Trafford, if she is the one to be answering this debate. I hope this can be explained in more detail—unless, of course, I have misrepresented it. Laying a statement of policy—the requirement of this clause—is not getting the job done.

The noble Lord, Lord Kerr, said there are no other changes. There is one change in the way the terminology is used that I am puzzled about. The reference to the child’s “best interests” has moved from coming to the UK to joining a relative in the UK. I am puzzled about it, but even more bothered. What significance should we read into this? Noble Lords will realise that I do read significance into this. Again, can the Minister help? The new clause must mean something different from the original—which, as has been said, is very modest. In non-technical terms, it means a signal that the UK Government are rowing back from working internationally to protect a rather small number of children who have undergone and are undergoing experiences that few of us could cope with—or, of course, that they are bargaining chips, as has been suggested. I understand that suggestion. It is not just about leaving them stranded on a journey to sanctuary in appalling circumstances; it leaves them vulnerable to exploitation, abuse and the particular risks of getting across the channel. Withholding the right of family reunification is not the way to tackle the scourge of people smuggling and people trafficking. Please let no one say that it would be a pull factor, because it is the push factors that we need to have in mind.

To be positive, I have some questions. What can the Minister tell us about the progress of negotiations on the arrangements, given that the Government have expressed commitment to the principle of family reunion and supporting the most vulnerable children? I think all children are vulnerable. Surely it is not about putting this on the back burner. What discussions are they having with organisations that support families to reunite about the design of a replacement for the Dublin system? What plans are there for necessary domestic legislation? Of course, I would welcome their adoption of my Private Member’s Bill, but I know that is not how these things work.

Earlier this week, other noble Lords may have had an email from a group of “kids”, as they style themselves, from Sherington Primary School in Charlton. I cannot read all their letters, but I will read just a little from one:

“I can’t imagine what it would be like to lose my home, my parents and to have to leave my country. These children are completely alone and terribly vulnerable. Surely we can’t just turn our backs on them. I thought my country was better than that. Please reconsider.”

That is a kid from year 6 of a primary school. I thank the 14 kids, whose names I am not reading into the record for safeguarding reasons. They may be kids, but they display a very clear understanding of the importance of safe and legal routes.

Photo of The Bishop of Worcester The Bishop of Worcester Bishop

My Lords, I am pleased to support this amendment, to which my friend the right reverend Prelate the Bishop of Durham has put his name. He is sorry not to be able to be in the Chamber today. A few weeks ago, we celebrated the story of Christmas. In the nativity, the happy events in a Bethlehem stable were followed by the more dramatic flight of the holy family to escape the violent persecution of King Herod. As we discuss this amendment, that story of the child Jesus and his parents fleeing from violence to a foreign land resonates loudly.

Children are among the most vulnerable victims of conflict, persecution and violence around the world. We all know that they do not choose to become refugees separated from their families. We as a nation can choose to reunite some families torn apart by conflict by offering children shelter, hope and a future. That is what I believe the majority of people in this country wish, and I am sure that is what the Government wish. This amendment seeks to ensure it by guaranteeing a safe, legal, effective and managed route for child refugees to join their families in this country.

As we prepare to leave the European Union, the United Kingdom has an opportunity to decide what kind of nation it will be and, very importantly, to communicate that to a watching world. The legislation we agree will send a powerful signal about what and who we value.

As has already been observed, this clause has provoked much concern. At a ministerial briefing yesterday, intended to reassure those of us who are concerned about it, I found myself puzzled. We were told of the Government’s excellent record, and that it will continue. That is good, but why then remove the family reunion obligation from primary legislation? We were told that the latter was constitutionally odd, and, further, that the Government need to ensure that their hands are not tied during Brexit negotiations. At the same time, we were assured that refugee children would not become bargaining chips in negotiations about anything else. We were told that there is a need for reciprocity, although the numbers of children going in the opposite direction, from this country to others, is minimal.

As I understand it, the Government maintain that this clause will not change anything. If that is the case, why not remove it? This amendment would reassure those who are nervous that this country will continue to be a place of safety and sanctuary for the most vulnerable refugees fleeing persecution and conflict: children. It would reassure everyone that the Government will uphold their commitment to those children and provide a measure by which we may all be held accountable for our shaping of this nation as a place of hospitality and welcome. That is surely worth a bit of constitutional oddity.

The story of Jesus and his parents fleeing their homeland for a place of safety is a story repeated millions of times over in our world today. Can we assure everyone that this country will continue to be a place of safety for children, especially those who have been separated from their families?

I commend this amendment and ask the Minister: will the Government reinstate their commitment to protect the most vulnerable of refugees: children?

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, we should be ashamed, listening to the noble Baroness, Lady Hamwee, reading out what a primary school child is reminding us about. We are adults: many of us are parents, all of us are in some way related to children, and for goodness’ sake, we were once children ourselves.

I am quite taken aback. Here we are, as adults, debating what should happen to these children. Section 1 of the Children Act 1989 said that the welfare of children is paramount, but we must also remember that people are vulnerable, and children are vulnerable young people. This small group of children about whom we are speaking have rights. This Government are proposing to take away their rights, because in the 2016 legislation of the noble Lord, Lord Dubs, which I strongly supported, and in the 2018 withdrawal Act, the rights of this small group of children were upheld. Now the Government are taking them away, even from the latest withdrawal Act.

I am sorry that because of family affairs I did not attend the meeting yesterday, and I am afraid that I did not see the Minister’s letter, but it was extremely helpful to hear what was being said. What I find extraordinary is that it is part of existing law. As for the idea that it is an oddity and we should not be legislating, this House supported the House of Commons to legislate for children with rights to rejoin their families in this country in 2016 and 2018. I make no apology for repeating this. For goodness’ sake, it is existing law. We are not talking about going out on a corner or something unusual; we are talking about retaining what this House and the House of Commons have already passed. This is one point which the Government have not met. It is existing law. The children have rights under Dublin, but they also have rights under English law, and this Government are intending to remove them.

The Government’s proposals seem to me to be peanuts. They do not in any way reflect what has already happened in Parliament, and that is not good enough. Coming back to what a primary school child in year 6 was saying, are we going to fail our own children, let alone the children with rights to come to this country?

I did not want to support amendments to this Bill, because I recognise that we have got to get it through, but this is a separate issue. It bears no resemblance to the rest of the withdrawal Bill, but my goodness, it matters. It is not only the children under the trees in Calais and Dunkirk—I saw them last year, and former MP Fiona Mactaggart and I wrote a report about it—but also the fact that they have a right to come here. Are we just going to let it go by the board?

Photo of Baroness Nicholson of Winterbourne Baroness Nicholson of Winterbourne Liberal Democrat 6:45 pm, 15th January 2020

My Lords, the compassion in the speech of the noble Lord, Lord Dubs, makes it extremely difficult to oppose him —but oppose him I do. Despite the wonderful statements by Cross-Benchers of enormous eminence who know more about children’s law than anyone else, my work in international children’s care tells me that this way lies danger. I have worked with children on all continents of the globe. I used to be a director of Save the Children and have worked with almost all international children’s organisations, and perhaps the heartland experience that I wish to offer the Minister is on child trafficking.

When I was fortunate enough to be the rapporteur for Romania, and when working in other countries on this, I saw the deep underbelly of the filthy trade that happens when you begin to move children away from their own jurisdiction. Whether a child is deemed to be a refugee or is labelled as part of a family, child trafficking is the fastest-growing sector of organised crime on the globe today. The European Union legislation has not only failed to protect those children but has, in some ways, made things worse. I will give a clear example of a Member of the European Parliament—from France, incidentally, although this is not a criticism of France as such. When we were having this debate in the European Parliament, he could not understand why the free movement of children should not take place, since the European Union allowed the free movement of camions. Noble Lords will remember that “camions” means lorries.

That is exactly what happens: once you start moving children around, there is no stopping it. It does not help to say that they are coming to the United Kingdom. One of the most traumatic cases I had to deal with was that of a child from Romania. When I went there, there were 30,000 children who had been trafficked in eight years: no names, no pack drill, just numbers on a computer. One of them was a boy who came as a refugee to London on a false passport. In London, that false passport was changed and he managed to get an American passport. When he arrived in America, he was met by eight men, and he has never been seen again. Thanks to one of those wonderful efforts by the FBI, the CIA, Scotland Yard and the Romanian police, 11 men were captured. They were said to be the biggest child trafficking ring for pornography on the globe.

I beg the Minister to retain Clause 37. We need to protect these children, to help them to stay in their own jurisdiction, not to move them around like this. They are unprotected as soon as they leave their own jurisdiction. We cannot manage it. We in Britain are very poor at managing unaccompanied children of our own. Look at the ones in the Midlands, for example. We have thousands of children coming in every year from countries trying to dump their children here. Others then pick them up and sell them.

I have another very good example, although there are too many to give all of them. When I went to Bucharest originally, there were 12 trafficking agencies—

Photo of Baroness Nicholson of Winterbourne Baroness Nicholson of Winterbourne Liberal Democrat

I will give way. I will have difficulty, as I cannot hear, as noble Lords know. Somebody will have to tell me.

In Bucharest there were 12 trafficking agencies, and when we pushed them out, they went over the border to Moldova, and they are now bringing in children from China.

Photo of Baroness Nicholson of Winterbourne Baroness Nicholson of Winterbourne Liberal Democrat

If noble Lords will forgive me, I will ask someone to interpret for me, because I was born deaf and will not pick it up.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

I have been to Calais and met unaccompanied children: on one occasion my noble friend Lady Bennett and I were together in Calais. Does the noble Baroness accept that the children most at risk are the unaccompanied children? The children we are talking about are coming to their families. They do not have a jurisdiction; they do not have a family unit. They are coming to their families.

Photo of Baroness Nicholson of Winterbourne Baroness Nicholson of Winterbourne Liberal Democrat

Lack of a jurisdiction is not quite the case. They have not lost their own jurisdiction, unless they have been signed out of it. You can therefore get them back home to their own jurisdiction. That is why my work, and the work of most people who, like me, work internationally, is to try to look after those children at home, to support the families and to bring clean water and food and everything else. Of course children can be signed out—by their own judges, for example—but most of the children that the noble Baroness is describing will not have been signed out at all; they will just have moved.

So I will merely say that we know all too well what happens to children when they are moved around. We in this House should not do anything to encourage that movement. That is why, from the heart, and from all my experience, I urge the Minister to retain Clause 37.

Photo of Lord Scriven Lord Scriven Liberal Democrat

My Lords, I have sat and listened to the debate on the Bill in this House, which has been wise—and sometimes entertaining, sometimes depressing, depending on one’s view of leaving the European Union. For the past two days I have stayed quiet and reflected on what has been said. For me it has been a surreal debate at times. Last night we had a debate in which all sides of the House pleaded with the Minister to keep one single market in the United Kingdom, and the Minister could not agree that that could be guaranteed. Earlier today there was an amendment about the rule of Parliament, and taking back control of the sovereignty of Parliament and not the sovereignty of the Executive. In the previous debate the Minister said that our hands should not be tied in negotiations—but the Government are tying their own hands by putting a false deadline on the negotiations.

However, I have to stand up now, because we have moved from a surreal debate to a cruel and heartless debate. Now we are talking about children who have family in this country. They are segregated; they will have seen war and persecution; some of them may have seen their mothers raped; some will have seen things that we cannot understand. And we already have a law in this land that says that, as a guarantee and as a matter of principle, they will come here now. Clause 37 takes that away. The Minister shakes her head, but it does. Basically, it says that rules will be laid before Parliament in two months’ time. It stops the existing provision and tries to put in a new provision—and we know not what that new provision will be.

Sometimes in politics, you just do the right thing. You do a thing as a matter of principle. I see nothing at all wrong in bringing here, as fast and as safely as possible, unaccompanied children who have family in this country. It is the right thing to do practically, and it is the right thing to do in principle. I must say to the Minister that this is a political decision. It is not a legal decision; there is nothing impeding negotiations. What is more, it is the right thing to do. I do not care what the other 27 countries do. As a British citizen, I want my values to be that we accept these children as a matter of principle. If the other 27 do not wish to do that, that is about their values—but this country, and this Parliament, should stand steadfast in saying that this is the right thing to do, and we want it to happen now.

I tried to think why the Government would not just allow this to happen. Why would they want to put a two-month staging post in place? Do they not want to do it? The Minister and the Government keep telling us that they do want to do it, and that it will happen. Fine. Are they not quite sure how it will happen, so they want to change the rules and the policy? The Minister shakes her head. So why have they not shown us what the new policy will be? Why the two-month gap? What are we waiting for? If nothing is going to change, the existing provision should stand.

Are we saying that we are putting in a provision for a two-month wait and nothing will change? Yet there are children across the country who need our support and help. Or are we going to use these young, vulnerable children as a negotiating chip? What a disgraceful position for us, as a country, to get ourselves into—that we could use the most vulnerable of the vulnerable as a negotiating position to try to get the other countries to agree to do something, we know not what? There is no reason for this clause—other than the possibility that there is something, however slight it may be, that the Government wish to change. I do not believe that that is the British way, I do not believe that those are British values, and I do not believe that that is what the British public will support.

I will end with what Robin Walker said when he was a Brexit Minister in the other place. He said that this was a matter of principle. I agree: it is a matter of principle—and it is time to put principle into action and stop the fake negotiation.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I think my credentials in legislation for children are fairly long and fairly clear—or at least I hope so. Before we start to think about children in principle, it is vital to think about the provision that we seek to replace. The Clause in the 2018 Bill gives children no rights whatever. It does nothing more than require the Government to enter into negotiations with regard to those children. That is all, which is very important.

However, the question is: is Parliament entitled to tell the Executive what they must negotiate for? That is the language of the part of the letter to which the noble Lord, Lord Dubs, referred. In other words, it is said that, as a matter of principle—I will elaborate on that principle in a minute—it is not right that the Government’s hands should be restricted by Parliament before the negotiations. It is the Executive’s responsibility to do the negotiation; it is for Parliament to call the Executive to account on how they have done it.

I shall refer to this only briefly, but your Lordships will remember that in the decision of the Supreme Court in relation to Prorogation, it pointed out that the important thing was the accountability of the Executive to Parliament. That makes an important distinction between the Executive and Parliament, because the Executive have the executive function, and then Parliament has the right to call them to account for the way in which they have carried it out.

The provision in question—Clause 17 in the 2018 Bill—is precisely that. It is an instruction to the Executive to open negotiations in a certain way. I understand from what we have heard already that the Executive have entered into such negotiations. However, the point made in the letter is a general one, of the kind I have just mentioned.

In the light of what the speaker before me has said, it has to be remembered that the existing rules are Dublin III. This gives rights to these children who are in the EU to come here under the conditions of protection it requires. There is no provision in this Bill to alter that, so the existing provisions remain as they are in relation to Dublin III.

What Parliament is asked to do now in the withdrawal Bill is to substitute that incorrect interference, as it was seen, with the freedom of the Executive to negotiate and to make a statement on the Executive’s position with regard to these children. The Executive’s position has been stated to be—it is accepted that this is correct —that the Government’s attitude to this is the same. In other words, they would wish something like the Dublin III provision to continue into the withdrawal agreement and the political declaration as given effect to in the ultimate agreement.

I had intended to attend a meeting yesterday but when I arrived at Room 20 I found that there was no one there but myself. Before I reached the room where the meeting was—Room 10A—I discovered that the meeting was almost over. Therefore, I have not had any discussion with the Government about this whatever. The letter I received, in which there is the passage to which the noble Lord, Lord Dubs, referred, is concerned with the principle that the Government are responsible for the negotiations, so they have to state their objectives and include—this is important—the children here in this position whose families are in the EU. Those children are not dealt with in the amendment of the noble Lord, Lord Dubs; in fact, it is no longer an amendment because it became part of the 2018 Bill. Therefore it is right—it is not a bargaining factor; it is a balance—that children in the EU in this position with family in the UK should come here and have a right to do so; and that children here whose families are in the EU should also have a right in the same way. That is a proper balance to achieve, and is what the statement is supposed to deal with in the Bill before your Lordships.

It is mistaken to think that this provision damages the underlying view that the noble Lord, Lord Dubs, had and which I supported. Your Lordships cannot believe that I do not believe that what he wants to achieve is right—I am sure that it is right—and I am equally sure that it should apply the other way around. I ought to be just as much concerned for the children here who are in this position and whose families are in the EU as the other way around. They are all children; they are all in much the same difficult position; and we should do everything possible to make the necessary arrangements for them to be reunited with their families. That is precisely the Government’s intention as shown in Clause 37.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 7:00 pm, 15th January 2020

My Lords, I support the noble Lord, Lord Dubs. Unlike him, I have not had any explanation from the Government about this, because an explanation—I looked it up in a dictionary just in case—involves explaining. We have not heard explanations, but we have heard excuses. Those excuses narrow down to three matters. First, the existing law in Section 17 of the European Union (Withdrawal) Act is perfectly all right and reflects the will of this House and Parliament generally; it has passed. The change cannot be interpreted as anything but a watering down. It is either a watering down or, as we have heard, a bargaining chip—something to trade when the negotiations happen.

The worst explanation is that this is a dead cat. It is an issue that the Government purposely know will excite much of this House; it will raise a lot of concerns and we will, I imagine, push it hard. The Government are therefore narrowing down the matters that we will push hard on when we come to Report. Whatever it is—whether it is a watering down or a bargaining chip, which would be absolutely wrong, or a dead cat—the conclusion is the same: we must remove this clause from the Bill. The Green group here, if I can call us that, supports the noble Lord, Lord Dubs, in his efforts.

Photo of Baroness Blower Baroness Blower Labour

My Lords, it is a pleasure to support my noble friend Lord Dubs in this matter. For me, this is a moral and ethical matter as well as a political one. Why would a Government resile from a clear provision to facilitate the reunification of refugee children with their families, particularly when it had already been passed into law?

A noble Lord opposite, who is not currently in his place, said that a Government with a majority of 80 might make some big mistakes, and the inclusion of Clause 37 would be just such a big mistake. As my noble friend Lord Dubs said, the British people are essentially humanitarian. The Government would be seen to be lacking in their will for social justice and basic humanity if any inhibition was put in the way of ensuring that that small number of children—who are already out of whatever their jurisdiction might be deemed to be, but find themselves in difficult and, for us, unimaginable circumstances—are reunited with their families in this country.

It is often said that a society is judged by how it treats its most vulnerable, its weakest and those in the most difficult circumstances. We would be found wanting if we were not to oppose the introduction of Clause 37; we would be treating badly those who are already extremely vulnerable. I would much prefer to be well considered in how we deal with, consider and treat the most vulnerable.

Photo of Baroness Sheehan Baroness Sheehan Liberal Democrat Lords Spokesperson (International Development)

My Lords, I cannot believe we are here again. It is like déjà vu, or a bad dream. I thought we had put this issue to bed. It took a long time previously and I have not forgotten how hard NGOs and people on this side of the House—and, of course, the noble Lord, Lord Dubs—had to work to make Dublin III work for unaccompanied asylum-seeking children who had family here. It was not an easy legal trip but, through JRs and so on, we got it to work eventually, and the thought that the system might be dismantled is too depressing for words.

It seems that Conservative Governments pass up no opportunity to try to prevent us abiding by our legal duty to uphold the rights of the child. I fear that views sometimes articulated by the right-wing press make some Members on the government Benches think they are being taken for a ride. One such view is that these children are sent here as a way to cleave open the system, so that the rest of the family may follow. Can they produce the evidence to back that up? No, because there is none. Children are more likely to stay quiet about where their family is because they fear that retribution might be visited upon them.

Another such view, referred to by my noble friend Lady Hamwee, is that allowing family reunification creates a pull factor that will encourage others to make the trip. I suggest that anyone who truly holds that view visits some of the refugee camps and speaks to people there. I am sure that listening to their human stories—such as that of Adam, whom I know well—will encourage them to think differently. Adam is not his real name. He fled north Darfur at the age of three with his family. He was orphaned but made it to a refugee camp where he lived a hand-to-mouth existence until the age of 14, in constant fear that the Janjaweed militias would one day succeed in taking him away. There was no school and no hope, just fear. At the age of 14 he took the decision to leave to try to make his way to Europe because the risk was worth it. He was driven to take the risk by desperation. His is just one story. There are many more children like Adam who desperately need our compassion and our kindness but, most of all, our commitment to international rules of law that protect the best interests of the child and, in particular, to the continuation of the Dublin III regulation once we have left the EU for good.

Removing our commitment to Dublin III from the Bill with a promise to make good later is not good enough. These children, and in particular their advocates, need to know that a system that has finally been made to work will not be dismantled. Starting from scratch to set up another system that works legally will mean that time will be lost, and lost time means that lives will be damaged. I think the Government will agree that there will be a gap in legislation and they cannot know how long it will be. Please let us leave things be.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

The Dublin III arrangements will continue until the end of this year. The Government’s purpose is to make arrangements that will take effect immediately after that. That is what this is about. It is not about taking anything away. It is about construction after the end of this year, assuming that—I am assuming what was said in the last debate—still stands.

Photo of Baroness Sheehan Baroness Sheehan Liberal Democrat Lords Spokesperson (International Development)

I thank the noble and learned Lord. The Government say that they will, but the question is when. There is no guarantee that there will not be a gap through which—

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

There is no guarantee that anything is going to happen particularly, but Dublin III is in and the Government have expressed their intention to replace it with an arrangement that applies to children here who have family in Europe and to children in Europe who have family here.

Photo of Baroness Sheehan Baroness Sheehan Liberal Democrat Lords Spokesperson (International Development)

If, as the noble and learned Lord said, nothing is going to change, let us leave things be.

Photo of Lord Elton Lord Elton Conservative

I have just a small point. I understand that under Dublin III “specified family members” refers not just to parents but to grandparents, aunts, uncles and siblings. When she replies, will the Minister slip in a word because that would make it easier for some of us to follow what is happening?

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Opposition Whip (Lords) 7:15 pm, 15th January 2020

My Lords, I rise to explain why Clause 37 should not stand part of the Bill. There is very little to add after the dozen contributions and the eloquent speech by my noble friend Lord Dubs, so I shall keep this short as we wait to hear from the Minister. I hope that her words will be positive.

The Government’s inclusion of Clause 37, which reneges on their previous binding commitment to seek to negotiate reciprocal agreements with the EU to facilitate the safe passage of child refugees with family in the UK is unnecessary and unjust. We will shortly be told that the Government’s commitment has not changed and that their policy remains the same. Your Lordships’ House was not convinced by this argument during consideration of the withdrawal Bill, which is why it voted overwhelmingly to insert the negotiating objective, and I am sure this House will not be convinced by the argument now, although we wait.

The provisions in the 2018 Act have been in place for 18 months and were not opposed by the Government. That surely means that they cannot be considered hostile or as examples of Parliament unfairly asserting itself over the Executive. The closest parallels I can see to the Dubs provision are the environmental ones in Section 16 of the 2018 Act. These required the Government to do something. Ministers fulfilled the requirement and that section has now been replaced. Ripping up prior commitments in the face of such opposition is not how a new Government should start their term in office. It is not too late for the Minister to accept the amendment or to bring forward the Government’s own text ahead of Report. I hope the Government will do the right thing. However, if they do not take note of this debate, we will certainly bring back the substance of it on Report.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department, Minister for Equalities (Department for International Development)

My Lords, I thank all noble Lords who have taken part in this debate and, in particular, the noble Lord, Lord Dubs. I have had many discussions with him, as he outlined. We do not always agree on how we are going to get to places, but we certainly agree with the end. I think Parliament and the Government are in absolute agreement that we are all fully committed to the principle of family reunion and to supporting the most vulnerable children in the world. Our policy on this has not changed. I want to underline that point because noble Lords seem to think that perhaps the policy has changed. It has not. On the point the noble Lord, Lord Dubs, made on the manifesto commitment, it is writ large in our manifesto:

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

We intend to keep to that commitment, and I am sure Parliament will hold us to account if we do not.

Clause 37 underlines that. We could have just deleted Section 17 and, by turn, Clause 37. We did not because we wanted to outline that commitment again in legislation. The commitment builds on the Government’s proud record of providing protection to vulnerable children. Since 2010, the UK has granted protection to 41,000 children—7,500 of them in the year ending September 2019—most of them because of our obligations under the refugee convention and the wider commitments that we have made. It is mostly nothing to do with EU structures.

More than 5,000 unaccompanied children are being cared for by local authorities in England alone—an increase of almost 150% since 2014. The noble Lord referred to local authorities, and he knows that the Government wrote to local authorities in good faith, and that whenever we heard about additional places being available, we took note and upped our number under Dubs. We have granted 27,000 family reunion visas under the refugee family reunion Immigration Rules over the last five years. This is not a mean Government or a mean country, and I am very proud of our record.

In 2018, the UK received more than 3,000 asylum claims from unaccompanied children, accounting for 15% of all such claims across the EU. That makes ours the third highest intake in the European Union. On national resettlement schemes, we take more children than any other country in the European Union. It is worth saying this because sometimes, if you listen to debates in this House, you would think that we do not do anything. It is important to outline our record, which reflects the unique importance of protecting unaccompanied children and preserves the principle of family reunion, which will continue. I commend this House on its strength of feeling on this issue—we are all humanitarians, and I assure noble Lords that the Government share an undiminished commitment to addressing these issues.

Clause 37 concerns only whether there should be a statutory duty to negotiate an agreement on family reunion for unaccompanied children who have applied for international protection in an EU member state, and who have family in the UK, and vice versa. The debate is not on wider issues relating to refugees, asylum or family unity. It does not represent a change of Government policy—as I said at the outset—it simply removes the statutory requirement to negotiate. We remain fully committed to providing protection to vulnerable children, and noble Lords might note that we have already committed to taking 5,000 people from beyond the MENA region, in dangerous areas of the world with vulnerable children, in the next year alone.

Noble Lords will be aware that, as part of the negotiation and making of treaties, including international trade agreements, this is a function of the Executive. It is interesting that the noble Lord, Lord Newby, said in the previous group that he did not want to tie the Government’s hands, but in the group before that, the noble Lords, Lord Butler and Lord Howarth of Newport, said that Parliament should not tie the Government’s hands. My noble and learned friend Lord Mackay of Clashfern made a good analogy with the Prorogation decision.

A statutory negotiating objective is neither necessary nor the constitutional norm. It is unnecessary because the Government have already written to the European Commission on 27 October to commence discussions on this issue. It is vital that the Government are now able to get on with it. The UK has existing and extensive legal provisions to guarantee family reunion, and one noble Lord—it may have been the noble Lord, Lord Scriven, but I apologise if I am wrong—spoke of no guarantees going forward, yet this legislation already exists, and is not affected by EU exit in any way. Furthermore, the UK will continue to be bound by the Dublin regulation during the implementation period, as my noble and learned friend pointed out.

Photo of Lord Scriven Lord Scriven Liberal Democrat

That is a bit perplexing. If the guarantee is already in law, what is this clause about?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department, Minister for Equalities (Department for International Development)

The noble Lord hits the nail on the head, because one might ask what Section 17 was about in the first instance. I said at the beginning of my speech that Clause 37 could not have existed, and we could have deleted Section 17, but Section 17 is, in most part, as it was originally, and is amended to include the reporting to Parliament and not the seeking to negotiate. It goes above our obligations and commits the Government to lay that Statement to Parliament on our policy regarding future arrangements with the EU for the family reunification of unaccompanied children seeking international protection, providing Parliament the opportunity to scrutinise our progress.

The clause makes it clear that supporting the most vulnerable children remains a priority, along with restoring the traditional division of competences between Parliament and government, as the noble Lords, Lord Howarth and Lord Butler, pointed out. The noble Lord, Lord Howarth, said that Parliament cannot give the Government their marching orders in negotiations. I hope that I have quoted him correctly.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

As long as the Minister does not suppose that I do not fully support the spirit of the amendment of my noble friend Lord Dubs.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department, Minister for Equalities (Department for International Development)

No, I was not making that inference. I was trying to point out both consistency and inconsistency within some of the debates we have been having today, as noble Lords seem to have contradicted themselves depending on what the issue is. On the division of competences between Parliament and Government, noble Lords will have seen, and will continue to see, changes being made across the Bill. It does not undermine our policy intent and rightly ensures that Parliament is informed of our policy intentions in respect of our future arrangements. The noble Lord, Lord Dubs, said that we have already written to the Commission, and that is correct. It shows our intent and commitment in the coming year.

The noble Lord, Lord Kerr, spoke of Clause 37 killing Section 17. It does not; it amends it, as he went on to outline.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

I am grateful to the Minister for giving way. Could she be clearer about this correspondence with the Commission? The Minister said in the meeting we had yesterday, and again just now, that a letter went to the Commission in October, to which there has been no reply. It is perhaps not surprising, since the Commission does not have a mandate to negotiate until after we have left the European Union. Perhaps that is a perfectly innocent explanation, but surely the amendment being moved will actually strengthen the Government’s hand when they come to negotiate in March or April, by demonstrating the high priority which Parliament gives to it?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department, Minister for Equalities (Department for International Development)

The reason we have not had a reply is probably, as the noble Lord pointed out, to do with the fact that we have a new Commissioner. I do not agree with the noble Lord’s point—this amendment ties the Government’s hands in negotiation, and we do not wish to see that. We want to articulate our commitment through the manifesto and in Clause 37.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

I am not quite clear on how it ties the Government’s hands. If we leave what is now on the statute book in place, there is an obligation on the Government to seek to negotiate. The Government say that they have already started seeking to negotiate, so I am not sure how it ties their hands.

I am left suspicious. I am with the noble Baroness and am prepared to agree that policy has not changed. I reject dog whistles and dead cats, and I believe the Government’s policy has not changed. What bothers me is that I do not know what priority they attach to it in the coming negotiations, and I fear that we are into bargaining chip country, which is really offensive.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department, Minister for Equalities (Department for International Development) 7:30 pm, 15th January 2020

The fact that the Home Secretary wrote to the Commission underlines our commitment, as does the fact that we put it in the manifesto and in Clause 37. The amendment to Section 17, to which the noble Lord referred, was an instruction to the Government, and I do not think that the Government should be bound by that.

I want to pick up on the noble Lord’s point about bargaining chips. Section 17 of the 2018 Act talks about seeking to negotiate. In one context—the way in which the noble Lord, Lord Dubs, puts it—that is noble, and I have absolutely no criticism of his intentions. On the other hand, when the Government say that they will write to the Commission and seek to engage with the EU in the coming year, that is seen as using children as a bargaining chip. I am not entirely sure how the Section 17 amendment, which talked about seeking to negotiate, and what the Government are proposing, which the noble Lord feels very sceptical about, are in any way different when it comes to bargaining chips.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

If the Government say, as they did on Monday night, in terms, that that amendment will not do because it is vital that the Government are not legally constrained in these discussions, that seems to imply that the Government might not pursue this point if the EU 27 decide to strike some sort of bargain with us which entails our not pursuing this point. If the statute book remained unamended—if the 2018 Act, which binds the Government only to seek to negotiate, remained in force—in what way would the Government be legally constrained unless they intended to negotiate in bad faith, which I do not think is the case, or to regard this as a lower priority, as a card that could be played? I find that very offensive.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department, Minister for Equalities (Department for International Development)

I would find it offensive if the Government saw children as bargaining chips. I do not think that any Member of this House or the other place sees a child as a bargaining chip. The Government are seeking to undertake an arrangement in which there is reciprocity. It makes absolute sense that we have reciprocal arrangements with Europe. We might be leaving the EU but we are certainly not leaving Europe, and children here will have family in the EU, just as children in the EU will have family here. We are seeking reciprocity, and Dublin III, as my noble and learned friend said, will be ongoing to the end of the implementation period. Please let us have no more comment about bargaining chips, because the legislation seeks to do the best by all children, whether they be in the EU or the UK.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

Before the Minister moves on, I do not understand the answer to the noble Lord, Lord Kerr, although perhaps reading it will help. None of us wants to think the worst of the Government over this matter. It might be helpful if noble Lords could see a copy of the letter that went to the Commission in October. It has been referred to several times but I do not think that it has been seen by any noble Lord.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department, Minister for Equalities (Department for International Development)

I am not sure that I can give that undertaking but I will certainly request it. I will also come on to the noble Baroness’s question about the words “best interests” appearing in subsection (1)(a) but not in (1)(b). The phrase “equivalent circumstances” in subsection (1)(b) duplicates that. She might like to take a look at that and, if she is not content, I will be happy to go through it with her.

The noble Baroness, Lady Sheehan, talked about the gap, and my noble and learned friend Lord Mackay pointed out that Dublin III will exist until the end of the implementation period. My noble friend Lord Elton asked for the definition of “relative”. I think that there has been another misunderstanding—that all the relatives were listed in Section 17 but do not appear in Clause 37, although they do. A relative in relation to an unaccompanied child means

“a spouse or civil partner of the child or any person with whom the child has a durable relationship that is similar to marriage or civil partnership, or … a parent, grandparent, uncle, aunt, brother or sister of the child”.

That is quite an extensive list and I hope that that helps my noble friend.

I shall finish on the words of my noble and learned friend Lord Mackay. Section 17 in and of itself gives no rights to children. Through Clause 37 we are attempting to lay out our intentions. We have done so in the manifesto and have already started talks with the EU on this subject. Our commitment to children has not changed.

Photo of Lord Dubs Lord Dubs Labour

My Lords, perhaps I may say a few brief words. I am grateful to all noble Lords who have taken part in this debate, which has been quite illuminating in the main, but perhaps I may comment on two or three specific points.

First, I want to refer to what the noble Baroness, Lady Nicholson, said. I very much respect her important work with Save the Children and other organisations overseas, but I think she is quite wrong on the trafficking argument. Where there are no legal routes to safety, people will allow themselves to be trafficked and will come illegally. Surely, by having legal routes to safety, we are making the position of traffickers much more difficult and making it much easier for people to achieve safety. Therefore, I am sorry but I do not agree with her on that.

Perhaps I may also return to the point that the noble and learned Lord, Lord Mackay, made. I do not have the wording of Section 17 of the 2018 Act in front of me but it has been referred to. It says that the Government should seek to negotiate on a particular basis. We have already talked about Clause 33 of this Bill, which would add something to the 2018 Act. It says:

“A Minister of the Crown may not agree in the Joint Committee to an extension of the implementation period.”

That is telling a Minister of the Crown exactly what he or she may or may not do, which is totally at variance with the argument that we have heard on Clause 37. I do not understand. On the one hand, the Government are saying in their own Bill that Ministers may be told what to do; on the other hand, they are using that as an argument against my amendment.

I am sorry to quote the Minister’s letter again but one paragraph seems to be at variance with other points and I wonder whether the Minister would like to withdraw it. It includes the words,

“so that the traditional division between Government and Parliament be restored”— that is, by removing Section 17—

“and the negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas.”

That goes a lot wider than what we have been talking about tonight. It seems to me that this is meant to talk about some relationship between government and Parliament, which in any case Clause 33 disproves, and it refers to

“an appropriate manner across all policy areas.”

I am sorry but I cannot interpret that in the way the Minister suggests.

I want briefly to make two or three other comments. I agree that the manifesto talks about a commitment to refugees but it says nothing about child refugees. It says nothing at all that would enable the Government to invoke the Salisbury convention against my wish to remove Clause 37 from the Bill. If the Minister would like to meet me to talk about local authorities, I would be very happy to do so. I know that local authorities are very helpful. I know of Northern Ireland organisations that will want to help now that the Government there has been restored. The debate is going on in the Channel Islands and the Isle of Man, although no decision has been made there yet. It seems to me, however, that there are more local authorities. In addition, Safe Passage, one of the NGOs with which I am working closely, has written to all local authorities and we have got quite a lot of positive answers. This shows that local authorities are willing to take more.

When we debated Section 67 in 2016 and the amendment that I put forward about child refugees with no people here, there was a fierce battle. I was asked time and again to withdraw my amendment. The Home Secretary asked me to withdraw my amendment. It got through, despite the Government’s wishes, and it got through the other House, despite their wishes. Then we had the amendment to the 2018 Act that we are talking about now. Again, there was a big vote fairly late in the evening; the Government did not want it. In opposition, we had to argue for amendments on behalf of refugees and now the Government seem to be taking credit for that. I am sorry, but that is not the way the world has been. I appreciate that the Minister is totally sympathetic to refugees, but that is not how the Government have behaved. They have resisted all these amendments and all we have in opposition is the chance to move amendments in the hope of making our point. That is why we have had these arguments.

I shall not press this issue tonight, but particularly in the light of the discussion, I might wish to return to it on Report.

Clause 37 agreed.