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European Union (Withdrawal Agreement) Bill

Volume 670: debated on Wednesday 22 January 2020

Consideration of Lords amendments.

I must draw the House’s attention to the fact that financial privilege is engaged in Lords amendment 1.

Clause 7

Rights related to residence: application deadline and temporary protection

Less than a fortnight has passed since we last debated the Bill in this House. Since then the House of Lords has sat for nearly 40 hours to debate more than 100 amendments. The noble Lords in the other place have asked this House to think again on five matters and I will address each in turn.

Turning first to Lords amendment 1 on citizens’ rights tabled by the noble Lord Oates, I know that noble Lords share the Government’s commitment to putting the rights and welfare of citizens at the heart of our withdrawal negotiations. The first part of the amendment establishes a declaratory system and the second part requires Ministers to bring forward regulations making provisions for those with declaratory rights to apply for a document evidencing their rights. This amendment would mean the successful EU settlement scheme in its current form would need to be abandoned, because there would be no need to register if people could later rely on a declaration that they were already in the UK. This would make null and void the 2.8 million applications and the 2.5 million grants of status that have already been completed. The Government would, under this amendment, also be unable to issue digital status to EU citizens without also issuing physical documents, including to those already holding a digital status under the current scheme. That would increase the risk of fraud and raises costs to Government and citizens.

Surely the Secretary of State is aware that his own Ministers have also been stating that it might be possible for people to print off emails, for example, to provide that confirmation. There seems to be a huge number of mixed messages here. He will also be aware that many of those citizens are already being asked for that proof by employers. Surely the Government should deal with the system as it is actually being used, rather than his imagined reality of it, which is rather different.

The hon. Lady anticipates my next point, which is on the interplay between a physical document and the digital status, because, as she knows, digital status is more secure than any physical document could ever be, and furthermore all successful applicants receive a confirmation letter and can download secure share codes which can be printed or sent to anybody an EU citizen might need to show their status to in the future. The key is the number that is there, and digital status is the most secure, but of course people can print off the email that they receive.

The vote to leave included a desire for greater control of our borders. We need to be able to differentiate between EU citizens who arrived pre-exit and have rights set out in this Bill and EU citizens who arrive after we leave, who will be treated the same as the rest of the world under the forthcoming immigration Bill. Despite the good intentions, a declaratory status does not allow for that differentiation, so I urge Members to reject this amendment.

The Secretary of State will understand that there are, of course, some people for whom the challenge of applying for status is considerable, and the Government have said they will give reasonable consideration to those who have reason not to have applied by the deadline. One group that I and other colleagues are particularly concerned about is children looked after in the care system by local authorities, which do not in many cases have either the resources or the expertise to pursue applications for those children to obtain settled status. Will the Secretary of State assure the House that they will be protected, as they would be under a declaratory system?

The hon. Lady makes a fair point, and I know that she has taken a close interest in the issue over many years. As she will be aware, we have committed £9 million to work with vulnerable groups and to help sectors, including the one to which she refers, with using the settlement scheme, and we have introduced a grace period to allow additional time if there are reasons why people need to apply late.

The fact is that the scheme has no charge and almost 3 million people have applied. It is working well, but we have an outreach programme, which includes 57 organisations and money to address the hon. Lady’s point.

The Government have previously disputed estimates from respected think-tanks that tens—probably hundreds—of thousands of European economic area nationals will fail to apply by the deadline and therefore lose their rights. Do the Government have their own estimate of the numbers? If they do not, how on earth can the Secretary of State dispute those figures?

That is in part why the Government have put a grace period in place; that reflects many previous debates in this House that included concerns raised by the hon. Gentleman and others about whether people might miss the deadline. Almost 3 million people have applied, which is a reflection of the fact that the scheme is working very effectively.

I shall make a little progress before taking further interventions.

I turn to their lordships’ amendments 2 and 3, on the interpretation of retained European Union law. Amendment 2, tabled by Lord Beith, would remove the power to set which courts may diverge from retained Court of Justice of the European Union case law, and how. Amendment 3, tabled by Lord Mackay, would insert a mechanism whereby any court thinking that CJEU case law should be departed from may ask the Supreme Court to decide.

The other place has one of the greatest concentrations of legal talent in the world, and it is only right that the Government’s intentions on such a sensitive matter should be examined by their lordships, and that challenging alternatives should be proposed. The Bill ensures that time is built in to allow consultation of the senior judiciary in all jurisdictions. It is worth repeating what my noble Friends Lords Callanan and Keen said: we will, of course, also consult the devolved Administrations.

In proposing amendment 3, the noble and learned Lord Mackay has made an interesting proposal, but the Government cannot accept this recreation of the CJEU’s preliminary reference procedure.

As a fellow lawyer, my right hon. Friend will know the importance of the doctrine of binding precedence—stare decisis—to our common law system. That was what the amendments sought to deal with.

Anyone looking at the Lords Hansard will see that we were clearly close to a compromise with Lord Mackay, in which the necessary scheme to disapply EU law would be dealt with not necessarily by the Supreme Court but by courts of appellate jurisdiction. If we do not accept this amendment as it currently stands, will the Government try again to find a compromise when the matter goes back to the Lords? This is a fundamental principle on which we ought to be able to find agreement.

My hon. Friend speaks with authority and constructively about how the issue could be addressed. Let me reassure him that the Government do intend to consider and consult rigorously to ensure that CJEU case law is properly domesticated after the end of the implementation period.

Let me set out to the House, especially hon. and learned Members, that the power in clause 26 is sunset until the end of the year—the point at which courts will start interpreting retained EU law. Any change to the rules of interpretation will come in time for litigants and the courts. We will ensure that there is legal clarity at all times on the rules of interpretation.

I rise to support the proposal of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), to go back to the Lords for a compromise on the matter. Of all the changes incorporated in the withdrawal Act in the past month or two, this is the weakest; it opens a swathe of problems for both Government and judiciary. Lord Mackay got very close to getting it right, and we should talk to him again.

I always listen intently to the constructive points put by my right hon. Friend, my predecessor but one. I draw his attention to the fact that we are committed to consulting the senior judiciary on our approach to this matter, which is my right hon. Friend’s underlying point.

The Secretary of State says that he is going to consult the devolved Administrations. However, the problem is that at present the Government speak to them without taking any cognisance of their answers. Will he give me an assurance that when he consults with the devolved Administrations on this matter, he will not only listen but actually take their advice on board?

There was a meeting between Ministers and devolved Government representatives yesterday about taking on board the input of the devolved Administrations during our discussions on the next phase of negotiations. There have been instances in which my counterpart in the Scottish Government has paid tribute to one of the Ministers in the Department, for example, in the early consultation on the withdrawal agreement Bill. I appreciate that the hon. and learned Lady’s position will always be to desire more consultation and for the UK Government to take further note, but we are consulting and will continue to do so.

I am grateful to the Secretary of State for giving way again. It is not that I desire more consultation, but that I want the British Government to take on board what the Scottish Government say—

Effective consultation, as the hon. Gentleman says.

As the Secretary of State will know well, the difficulty is that the Cabinet Secretary Michael Russell, the most senior Scottish Government official with whom the British Government deal, is clear: he is listened to if he is lucky, but they never take his advice on board.

To say “never” contradicts comments that Mr Russell has himself made, but the hon. and learned Lady has made her point about consultation.

I shall make a little more progress before taking further interventions. I urge Members to reject both amendments.

I turn to Lords amendment 4, tabled by the noble Lord Dubs. Although the Government humbly disagree with the amendment, we recognise his sincerity about and dedication to this issue and the constructive scrutiny that he has provided on behalf of vulnerable children. The amendment would remove the provision that amends the European Union (Withdrawal) Act 2018 to require the Government to report on their policy on unaccompanied asylum-seeking children.

I can only say again, as I did in our previous debates, that the Government’s policy is unchanged. Delivering on it will not require legislation. The Government have a proud record on supporting the most vulnerable children. The UK has granted protection to more than 41,000 children since the start of 2010. In 2018, the UK received more than 3,000 asylum applications from unaccompanied children, and the UK deals with 15% of all claims in the EU, making us the country with the third highest intake in Europe. Indeed, in the year ending September 2019 the intake rose to more than 3,500.

The right hon. Gentleman pre-empts the passage that I am just coming to.

As hon. Members will be aware, my right hon. Friend the Home Secretary wrote to the European Commission on 22 October on this very issue. The amendment in no way affects our commitment to seek an agreement with the EU. Primary legislation cannot deliver the best outcomes for these children, as it cannot guarantee that we will reach an agreement. That is why this is ultimately a matter that must be negotiated with the EU. The Government are committed to seeking the best possible outcome in those negotiations.

Over the past three and a half years, there have been many arguments and debates about European citizens’ rights and their protection. Refugee children are among the most vulnerable in the world—surely none of us, regardless of the side of the argument we were on, wants their safety or the possibility of their being reunited with their families to be undermined in any way. Why, then, are the Government so determined to take such provision out of the Bill rather than going with the amendment, which would offer a guarantee and reassure everyone in the House?

I give way to the previous Chair of the Home Affairs Committee—I am conscious that that election is still to come.

The Secretary of State has still given no reason. Why take the provision out of the 2018 Act? It is in previous legislation. There are loads of things in legislation through the decades that the Government say they disagree with, but amendments are not needed because they have said they disagree, and they do not remove those things from the statute book. That is what makes us suspect that he wants to remove it, because for some reason he thinks that it will restrict what he wants to do, and in the end, therefore, he will betray the commitments that have been made to the most vulnerable children. If not, he should keep the provision in the Act.

Let me address that head-on: the reason is that the purpose of the legislation is to implement in domestic law the international agreement that we have reached. That is what the withdrawal agreement Bill is doing and that is why we do not support the amendment. What drives the right hon. Lady’s concern is whether the protections will be in place for unaccompanied children. I draw her attention again to the Government’s record as one of the three best countries in the EU. The figures show that this country has the third highest intake and deals with 15% of all claims in the EU. That is the policy that the Government and the Prime Minister are committed to, and it is reflected in the Home Secretary’s approach.

At this late stage in the Secretary of State’s comments, will he reflect again on Lords amendments 4 and 1? If what he says to the House is true, there is no principle at stake. If the policy and the determined will of the Government remain the same when it comes to unaccompanied child refugees, there is nothing to be lost. There was no strong defence of the Government position in the House of Lords. I urge him to consider this matter wholly and listen to voices across the House who believe that it would be better to see legislative provision than not.

I draw the hon. Gentleman’s attention to the comments that I have made: the policy has not changed and the Government’s commitment is reflected in the record, and that is why the amendment should be resisted.

Lords amendment 5 seeks to recognise the Sewel convention. The convention is already found in statute, in the Scotland Act 1998 and the Government of Wales Act 2006. However, the convention in no way limits parliamentary sovereignty. As hon. Members will recall from the Miller case, the Sewel convention is fundamentally political. It was found then not to be justiciable and to reflect it in this statute should not change that.

The Prime Minister has made it clear that he thinks that the Union is important, as I do, but it is unprecedented that the Senedd, the Scottish Parliament and the Northern Ireland Assembly have refused consent for the Bill. The Welsh Government have made it very clear in refusing consent that it is because the UK Government can potentially force them to accept international obligations in the future relationship, which could impact on devolved competences. When we think about such things as the NHS, that will be absolutely crucial. Will the Secretary of State be clear whether he is going to work with—as well as just meeting and ticking the box—the devolved Administrations on the future negotiations, or is he going to impose this, generating further conflict and damage to the Union?

The hon. Gentleman and I both treasure the Union and want to work to ensure that it is preserved. To address his point, we had a meeting yesterday with devolved representatives, including the Welsh Government, to hear their input in the next phase. We are committed to working with the Welsh Government, among others, as we shape that negotiation.

As was noted in the other place, the issue that I was describing is not quite what the amendment turns on. As the noble Lord Callanan said when responding to this amendment yesterday:

“What matters is that the Government continue to uphold the Sewel convention”.—[Official Report, House of Lords, 21 January 2020; Vol. 801, c. 1074.]

We have done so in the passage of this Bill, including by ensuring that devolved Ministers will have a clear role in the functioning of the independent monitoring authority, particularly in their role in nominating to its board members with specialist devolved expertise.

On 17 January I wrote to Mike Russell and Jeremy Miles, my counterparts in the Scottish and Welsh Governments, to make clear the Government’s commitment to the legislative consent process and the enduring power and value of our historic partnerships. We are of course disappointed that the devolved legislatures have nevertheless not consented to the Bill.

I will take one more intervention, but the direction from the Chair is that I should allow other Members to speak in the debate and not take undue time.

Given the Secretary of State’s reference to the letter to the Welsh Government and the Welsh Minister, how does he square the circle of wanting, on the one hand, to reinforce the principles of Sewel and so on, but on the other, wanting to amend the legislation to withdraw the commitment?

Order. I am bit bothered about time. We have quite a few Members who want to make speeches. I remind Members that they cannot just walk in and put a question to the Minister—let us all work together for one another.

I was trying to be generous in taking interventions, but I will take your direction, Mr Speaker.

We very much respect the devolved Governments’ opposition to Brexit as a whole, but the legislative consent process should not be the place to show such disagreements; rather, it is for voicing concerns with parts of legislation that relate to devolved competences. The refusal of legislative consent in no way affects the Sewel convention or the Government’s dedication to it. However, as recognised by both Mike Russell and Lord Sewel, these are not normal times. Given those circumstances, I urge Members to reject this amendment.

We have covered significant ground in debating this Bill. Once passed, it will stand as an historic piece of legislation. I therefore hope that the House will respectfully disagree with their lordships’ amendments.

I rise on behalf of the Opposition to explain why we oppose the Government on all five of their motions to disagree with their lordships.

On EU citizens’ rights, their lordships passed an amendment providing for, first, a declaratory system for gaining settled status and, secondly, for a physical document. The declaratory system would honour the previous Government’s pledges to EU citizens living here before we leave the EU that they would enjoy the exact same rights as before—we are just asking this Government to honour that. It would avoid the cliff edge of time limits—the grace period still means that there is a time limit—and pressures on people who have the legal right to be here but who, for various reasons, are being asked for yet more evidence or have only been given pre-settled and not yet settled status.

The Government talk of the 2.5 million people who have been granted status, but many of those who have applied for settled status and are entitled to it have been granted only pre-settled status, which does not give that promised certainty. Many people are not aware that they need to apply, particularly those who have been here since childhood. Others may not apply in time, for many good reasons. The Secretary of State says that late applications for good reasons will be considered, but we do not really know what good reasons will count. That does not give certainty.

The Minister in the other place argued that declaratory registration is not necessary because the current scheme addresses all problems, but it does not. The arbitrary time limit and the problems and delays in securing status all risk making some people who should be lawfully resident unlawfully resident past the time limit.

The physical document—the other part of the amendment—is vital. Surely we in this Chamber all know that internet signals are not reliable. People do not all have smartphones. Other categories of non-UK citizens have a physical document, so it is not surprising that the Residential Landlords Association say that it is deeply concerned about the lack of physical proof and that landlords are not, and should not be treated as, border police. In a perverse justification of the policy, Ministers have said that providing a physical document, as this amendment proposes, would make a future Windrush-style scandal more likely. On our understanding, it is the exact opposite.

My hon. Friend is making an absolutely crucial point. That is very much what we heard in evidence from experts at the Home Affairs Committee during the Windrush inquiry in the last Parliament. They talked about the importance of physical documents and the declaratory system issue.

My hon. Friend makes exactly the right point. Government Members should consider that the Joint Council for the Welfare of Immigrants, the3million and the Residential Landlords Association have all warned that there is a risk that landlords and employers will be reluctant, without that immediate physical proof that other Windrush citizens lacked, to let a home or offer a job to EU citizens.

The shadow Minister has referred to poor communications. As I have mentioned many times in this place, they are very bad indeed in my constituency. Broadband is at best indifferent. I suggest to the House therefore that many EU citizens are being disadvantaged when trying to get into the system at all because of where they live.

My hon. Friend will be aware that the Brexit Select Committee in its former incarnation recommended a physical document. Many Members will have had this experience: constituents apply for further leave; employers say, “Prove you have leave”; they are told by the Home Office, “Apply to the checking service”; lots of employers refuse to do that, and as a result our constituents lose their jobs. Is that not precisely the kind of reason we need a physical document?

My right hon. Friend is exactly right. I ask Government Members to imagine a future constituency surgery in which they are asked to explain to their constituents who are EU citizens why they have been denied a physical document or settled status or have experienced delays in getting that status changed, and have thus been refused a job or a home—because their MP refused to back this amendment. Their constituents will ask, “Why did you vote this way?” and they will need a good answer.

The hon. Lady will have heard the Minister say that online status is more secure, but someone with leave to remain or who is here on a spouse visa gets a physical residents’ permit. If online status were more secure, the Government would have done away with that, but they have not. Is that not the point? The Minister’s point about security is no justification for opposing Lords amendment 1.

That is spot on. It is why many EU citizens in my constituency say they feel singled out—because they do not have what other non-UK citizens have, which is a physical document.

I turn to the CJEU and Lords amendments 2 and 3. In clause 26, the Government signal their intention to create chaos and uncertainty in our legal system. I can do no better than quote from the noble Lord Pannick, who said he supported the amendment for the following reason:

“Clause 26 is fundamentally objectionable, because it would give the Minister a delegated power to decide which courts should be able to depart from judgments of the Court of Justice and what test those courts should apply.”

He went on:

“These are powers which step well over the important boundary between the Executive and the judiciary. They are matters which should not be decided by Ministers.”

Later he said—and he was absolutely right—that

“once they are conferred the political and legal constraints if they decide to act unreasonably are limited.”—[Official Report, House of Lords, 20 January 2020; Vol. 801, c. 984.]

The Government ask us to trust that they will not go beyond existing constraints, but that is not good enough. Clause 26 would lead to different interpretations of the law in higher and lower courts, greater uncertainty and therefore more litigation. That cannot be what the Government want. Amendment 2 therefore simply deletes the entire provision.

Amendment 3 was a compromise proposed by a Conservative former Lord Chancellor, Lord Mackay—surely a man whom Government Members would want to listen to. He tried to find a compromise whereby the ministerial right to make regulations would be removed. Instead, any court could consider the possibility of departing from case law but would have to set out its reasons and refer the case to a higher court. What on earth could be the problem with that?

Surely my hon. Friend accepts that ultimately the test of when courts can diverge from EU law should be set in this Parliament and applied by our courts and that, if there is any question, it should be referred to the Supreme Court. That would maintain the division between Parliament and the courts.

The problem is that we are allowing Ministers to set the terms and test, which is an unacceptable breach of the boundaries between the Executive and the judiciary.

The Government have had plenty of time to consider the provisions of the European Union (Withdrawal) Act 2018. If they want more time, just giving Ministers broad and sweeping powers is not the answer. They could, if they wanted, bring a short Bill before Parliament with proposed amendments that we could debate and scrutinise in the usual way. Every Government Member must understand—it seems that several possibly do, although they are no longer in their places—that if they pass the Government’s motions to disagree with amendments 2 and 3, the separation of powers will be blurred, there will be legal chaos and it will be impossible for Parliament to change. These are not powers that should be exercised through regulation. We should not risk ministerial interference in judicial processes. The Government should think again and withdraw their motions to disagree. If they do not, we will vote against them.

Thirdly, I turn to child refugees and Lords amendment 4, to leave out clause 37, which amends clause 17 of the 2018 Act and thus removes the obligation on the Government to negotiate future arrangements to protect unaccompanied child refugees. This is such a modest provision—it also reflects the Government’s own commitment—that it seems extraordinary and inexplicable that they are removing it. I have very dark and deep suspicions about why, though I want to be charitable and I am hoping there may be a good answer.

As Lord Dubs said, it is partly the scattergun of justifications that leads one to be suspicious. He was asked by Ministers to trust them, and he very generously said that as individuals he did trust them but that he did not trust them as a Government—because their predecessor Government had form on this. They promised to take 3,000 children on the Dubs scheme, as originally committed to, but took fewer than 500 in the end. The Government have boasted, as the Secretary of State has just done, about the number of children given refuge in this country, but have ignored the fact that most could not and did not come by the safe or legal routes that currently exist, even when entitled to them under the current law. They were often trafficked or took dangerous journeys in order to reach their family members, because they felt they had no other choice. We are talking about reuniting families, but removing the already restrictive access to safe and legal routes does not decrease the risk of trafficking; it increases the risk.

My hon. Friend is making an excellent statement. Does she think that the phrase “global Britain” means we stop supporting and giving sanctuary to some of the most vulnerable people in the world? [Interruption.]

Of course not—hon. Members on the Government Benches seem to agree with my hon. Friend—but if so why remove the provision? Why not keep it in?

The Government say there is no change of policy, but the removal of clause 17 is a change of policy. They complain that leaving the provision in will act as a pull factor, but that rather indicates that what they want is a change of policy. They tell us that this is not the right Bill for the provision and that it should be in the immigration Bill, but clause 17 is context and time-specific: it directs the Government to a negotiating objective during the very time limited period—a matter of months—that they now have to agree the future relationship. As the Secretary of State has said, we cannot bind our neighbours to our national law, so that is not a valid argument against putting any other commitment in any other law. This provision only commits the Government to a negotiating aim. They say it can be done through rules, but a negotiating aim cannot be pursued through immigration rules. So which is it—is it law, is it rules, is it an aim, or is it no change at all, as they have also claimed?

The Government have said the provision would bind their hands in negotiations but then became offended at the accusation that they were using children as a bargaining chip. Again, which is it? Are children a limit on the negotiations or not? They have also justified their argument on the grounds of the election manifesto, but the only words in that manifesto were:

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

There is not a word in that manifesto that implies this change of policy—and it is a change of policy—on child refugees. Just saying that it is not a change does not make it so. If it is not a change of policy, why does the provision need to be removed?

The shadow Minister brings up a hugely important area. As a former chairman of the all-party group on human trafficking and modern slavery, I consider it a very important issue. I hope the Government will commit to coming back to us, but separate from the Bill. I accept their argument that this Bill is the wrong place for this provision. It is much more important elsewhere.

I thank the hon. Gentleman for that point and for his partial agreement—I think—but if it is not acceptable in this Bill, why would it be acceptable in another? It is a negotiating aim, and we are told by the Secretary of State that the negotiations have already started.

To my understanding, all that has happened is that the Home Secretary has written a letter. I think that was in November. We have not yet heard what reply there has been or about any negotiations. I do not want to believe that the Government think so little of our country that they are pulling back from protection for the very small number of children that this clause originally covered. I hope that we as a country are secure enough in ourselves to be generous to those fleeing persecution. I ask Government Members to consider that this motion demonstrates a lack of compassion. The Government’s reasons are contradictory and there are no justifications in the manifesto for removing this very modest, limited but necessary provision to protect some of the most vulnerable children we can imagine.

Many of my constituents have been in touch with me, including Kirsty, who told me that her granddad was forced out of Czechoslovakia as a child after world war two and came to the UK as a refugee, where he was reunited with his parents. Many of my constituents have experience of that family reunion, and they, too, do not understand why the Government would want to row back on it. Does the hon. Lady agree that the Government really must change their mind?

I thank the hon. Lady for that intervention. It is clearly important to put on the record again that we are talking about reuniting children with an adult relative who is here legally. We are not talking about people who have no right to be here; we are talking about protecting the requirement to negotiate that. We really, really ask the Government to think again, and if they do not, we will vote against the motion.

May I add, very briefly, to what my hon. Friend has said about family relationships? We also want the Government to stick to the principle that this should be an adult to whom the child is related, not just a parent.

My hon. Friend is absolutely right. I do want the Government to stick to that commitment. For the Government to ask us simply to trust them because it will pop up in another bit of legislation is just not good enough.

Let me finally deal with Lords amendment 5, which relates to devolution. This will be the shortest part of my speech. The Sewel convention provides that when Parliament wants to legislate on a devolved matter, it will not normally do so without the relevant devolved institution being properly consulted. All we want to do is ensure that that happens. Our devolved nations need to know that Government assertions about UK sovereignty in clause 38 are properly and legally tempered by respect for the law, conventions, and practices on devolution. That seems completely reasonable to us.

Does my hon. Friend agree that despite what the Government are saying, the impression is being given that they wish to undermine the Sewel convention through their act of opposing this amendment?

That is indeed the impression that seems to be being given. I suggest that Conservative Members, particularly those who are newly elected and represent constituencies in Scotland and Wales, should ask themselves whether this is what they told their voters back in November. Did they tell them that they would be voting against respecting devolution? Is that what they said to their constituents?

The hon. Lady will, of course, be aware that the Northern Ireland Assembly, the Welsh Senedd and the Scottish Parliament have refused consent. What does it say about the so-called partnership of equals if the three devolved Parliaments are completely ignored by the British Government?

I think what it says is that the Government will consult, but they are not listening. I think it mighty suspicious that the refusal to respect the amendment comes after those devolved legislatures said that they did not consent.

The Government talk so much about democracy during election campaigns, but is it not time they accepted that listening to our devolved communities is very much part of democracy? They cannot just go out and talk about democracy and forget that.

The hon. Lady is quite right. That is one of the problems that we had during the previous iteration of the Bill, and even more in the case of this one.

I am the first to acknowledge that the hasty publication of the original European Union (Withdrawal) Bill, including clause 11, left a scar because of the lack of consultation, but the Sewel convention remains on the statute book. It is not being deleted. We do not repeat everything important in every Act simply to re-emphasise it. That is a kind of virtue signalling that it is not necessary to include in this legislation.

If the hon. Gentleman thinks that the convention is already law and we should respect that, why not just accept the amendment? Clause 38, which it seeks to amend, makes the somewhat obvious statement that this Parliament is sovereign. Why does that need to be in the Bill? I should like the Secretary of State at some point to make a commitment, on the record, that the Government will not introduce legislation on devolved matters without proper consultation.

This was a bad Bill in October, and it is a worse Bill now. Amending it is not stopping Brexit; it is about the future, and our long-term relationship with our neighbours. Scrutinising and amending legislation and holding the Government to account—it seems odd that I have to remind the Government of this—is exactly what we are supposed to do in both Houses.

Again I ask Conservative Members, especially those who are newly elected, whether they really think that this is what their voters wanted. Their voters may well have voted for Brexit—the Opposition accept that—but did they vote for the Government to break trust with the country on child refugees? Did they vote for the separation of powers between the judiciary and the Executive to be blurred? Did they ask for Ministers to be given more ability to interfere with the independence of the courts? Did they really vote to treat people who have been here legally for years, who have the legal right to be here, who have families and jobs and live here, to be treated differently, as second-class citizens? Did they vote for central Government to be able to impose their will on the devolved legislatures?

The Government have asked us to trust them, but, on all these matters, why should we need to rely on trust? We are lawmakers. Why should we not include this in the legislation? After all, the Prime Minister has changed his mind many times on many things. Why should we just accept this on trust? If Conservative Members think that that is what their electorate voted for, I say that they have a dim view of their own voters. This is now on them. I can absolutely promise that when these provisions unravel and the consequences emerge, Labour Members—with no pleasure or satisfaction whatsoever—will be saying to Conservative Members, “We did warn you.” We will vote against the Government today.

Order. Very short contributions are required, as there are only 20 minutes left. For two minutes, Sir William Cash.

I simply want to say that I concur entirely with what the Secretary of State has said, and to refer very briefly to Lords amendments 2, 3 and 5.

Let me say first that the Government’s arguments about the question of the lower courts in relation to the Supreme Court are completely valid. I think that an enormous number of complicated problems will emerge from Lord Mackay’s amendment. The use of expressions such as “is of the opinion” and

“set out the reasons for that opinion”

will create a quagmire of interpretation.

As for Lords amendment 5, when I had the pleasure of advising on the Canadian constitution back in about 1982, I engaged in extensive discussions with Mr Geoffrey Marshall of The Queen’s College, Oxford, who is the greatest authority on the question of conventions. I entirely agree with the Government’s position on that, in the light of my own experience of what conventions actually mean, and I have to say that I have heard a lot of hogwash this afternoon in support of the alternative view.

My apologies. Let me just say that I fully support the statement by the hon. Member for Bristol West (Thangam Debbonaire) that this is not about trying to refight the argument over Brexit; it is about what is best for the future of the country. In their manifesto just last month, the Government promised voters that the rights of European citizens would be protected. I appeal to Conservative Members to stand by that, particularly when it comes to the vulnerable children whom we have already discussed, who are separated from their families, who are refugees, and whom we can reunite legally with their families in this country. Why are the Government so reluctant to put that back in the Bill and protect it by law?

May I end by saying one tiny thing about the Sewel convention? The Government say much about protecting the United Kingdom, but I would ask them to consider how often they undermine their own argument and tie the hands of those of us on the Opposition Benches who want to protect and work for the United Kingdom. I learned a long time ago that impact is intention, and regardless of the intention in respect of the Sewel convention, the impact of it is to damage our own argument. The Liberal Democrats will therefore oppose the Government, and will support all five amendments.

The devolution question has been running ever since the publication of the European Union (Withdrawal) Bill in the summer of 2016—or 2017, I cannot remember—and there has been an erosion of trust. I plead for us to try to rebuild that trust between the different bits of the United Kingdom, because they will have to exist even if at some distant future date Scotland becomes an independent country. The question is: how are we going to rub along together?

I want to add a particular point about the supremacy of EU law. There is no power grab in any of this. The powers that are being held by the United Kingdom Government are simply the powers that were being held by the European Union since the inception of devolution. Some are arguing that the repeal of the European Communities Act 1972 means that there is an implied power grab from the devolved Assemblies and that these matters are not automatically being transferred back to the Assemblies. However, these are powers that the devolved Assemblies never held. In fact, the EU has the power to make international agreements that grab more power from the devolved Assemblies without any consultation whatever, so what we have is an improvement in the situation.

I understand why these matters become inflamed, but we should try not to inflame the division that exists between us on other matters by using this issue. That is not going to improve the harmony of the relations between this Parliament and the devolved Parliaments, or between this Government—any Government—in Westminster and the devolved Governments. I appreciate why some might take a different view because they have an agenda—which I completely respect, I really do—but this is not the time, in this Bill, to start fomenting those particular issues.

The SNP group supports all five of the Lords amendments and will therefore be voting against the Government. With regard to a declaratory system, the Secretary of State keeps saying that it will make things more confusing, but it would make it a registration rather than an application. The difference is that under such a system, there would be a guarantee of acceptance, which does not exist at the moment. The Government say that between 85% and 90% of EU or EEA citizens will get settled status quite easily, but that means that between 300,000 and 450,000 people will not. We can see that the people who are struggling with this are those who have had career breaks or caring responsibilities, which is particularly affecting women. There has been no sign of an equality impact statement on this, but there simply should be. The elderly and frail who have been here for decades have been overlooked, including people in care homes or those with dementia. It is wrong to have even the slightest threat hanging over such people who have spent their whole lives here.

The question of a physical document is also really important, as other Members have explained, with regard to dealing with landlords and employers, particularly because the internet is not always accessible. The Secretary of State said that people could download the email that they are sent that explains their status, but that email explicitly states that it is not proof of status. It does not provide such a document, even if it is printed. I am sorry, but after Windrush, EEA citizens and others do not trust the Home Office not to lose, delete or change their records.

Amendments 2 and 3, relating to clause 26, would remove the delegated power of Ministers to decide which courts and which test should be used to set aside ECJ judgments. This power steps away from the principle of precedence and raises concerns about judicial independence. The Conservatives put in their manifesto that they wanted to rebalance power between the Executive, Parliament and the courts. That starts in this Bill, and we should be very wary of it.

Amendment 4 relates to Lord Dubs’ amendment to restate the Government’s commitment to unaccompanied child refugees. Removing this proposal was probably the thing that most shocked MPs on both sides of the House, who felt that the Government simply could not justify it. At the end of transition, the UK will be outside the Dublin system, and transferring an application for refugee status from one country to another will disappear. The problem is in paragraph 319X of the immigration rules, which is all about the cost of a child coming and the ability to accommodate them. It pays no attention whatever to what is best for the child. That is what the Dublin system does, and the original clause simply said that the Government had to negotiate on this. There is nothing in that for the Government to object to.

Amendment 5 relates to clause 38. We are in unprecedented territory when all three devolved Parliaments have voted against giving legislative consent for this Bill. This is not just Governments; this is not just people who have the same agenda. It is the Parliaments that have voted in this way, and this Government ignore that at their peril. People now feel that, after 20 years, devolution is threatened not just by this Bill but by the former changes. Devolution is precious to people, even to the people who do not support independence, and the Government riding rough- shod over it really sends a message of disrespect. The Prime Minister likes to define himself as the Minister of the Union, but he cannot maintain a relationship or a marriage through force. It has to be based on respect. If all of this leads to the crumbling of the precious Union, he will have only himself to blame.

Given the shortness of time, I will limit my remarks to those subjects that have not been addressed at length today. On amendment 1, which deals with the declaratory system and the documents, I want to make two points as a former Immigration Minister. First, on the declaratory system, I think it is important that we should have the current system, which encourages people to establish their status and ensure that it is clear now. The lesson that I took from Windrush was that one of the problems was that people laboured for many years under the sometimes correct but often incorrect understanding that they had a legal right to be here and all the appropriate documents, only to discover many years down the line that they did not. Encouraging European Union citizens to register and establish that certainty now is sensible, and taking the existing system—which, as the Secretary of State says, has already had 2.5 million successful grants—and effectively having to restart it would not be a good way of delivering certainty.

On amendment 4, which deals with the so-called Dubs amendment, the Government are trying to establish an important principle. I have not heard this set out particularly clearly, but the question is whether Parliament should legislate for the Government’s negotiating objectives. That position was never taken by the Government in the last Parliament, but because the Government did not have a majority, that Parliament forced certain negotiating objectives on the Government. I think it is better to re-establish the traditional mechanism whereby Governments negotiate treaties and bring them to Parliament for ratification into law. That might sound like a minor point, but it is an important one to establish. The Minister in this House has made it clear, as has Lady Williams in the other place, that the Government’s policy has not changed. There is now a relatively short period of time until the end of this year, and it is worth saying that the European Union has committed in three separate paragraphs of the political declaration to agreeing our future relationship by the end of this year, as well as our having made that commitment. I am therefore confident that we will have re-established the Dublin regulation in practice by the end of this year, which is why I firmly support the Government in rejecting this amendment.

Finally, the Sewel convention is already enshrined in statute. I listened carefully to what the hon. and learned Member for Edinburgh South West (Joanna Cherry), who is no longer in her place, said about this. Consulting someone, listening to them and taking into account their views is not the same as doing as they say. The problem is that it seems to me that the three devolved legislatures are simply refighting the Brexit argument. In 2014, the people of Scotland decided, for a generation, that they wanted to be part of the United Kingdom, and in 2016, the United Kingdom voted to leave the European Union. If the devolved legislatures were accepting of that decision and were trying to help the Government to deliver it in a better way, that would be one thing, but they are trying to refight the battle that they lost.

Last year, I visited the camps in Calais. I met some refugee children, camped in the woods, who longed to be reunited with family members living in the UK. Those children have fled war and violence. It is only right that we uphold our moral duty and afford them the right to arrive in the UK safely. They are at risk of abuse and exploitation by traffickers. If safe routes are not provided, all this measure does is make dangerous channel crossings more likely.

Amendment 4 puts back provisions that were taken out of the previous withdrawal agreement, preserving the rights of refugee children to travel to the UK from an EU country after Brexit. The Conservatives claim to be the party of the family, yet this policy and their actions exacerbate divisions that cause harm and distress and put these children’s lives at risk. I have no faith in the Government to protect such rights in other legislation. Their track record on doing anything to support refugee children coming to the UK is appalling. Amendment 4 is in the right place; it should be in this Bill. The amendment speaks to our humanity as a country. If it is not agreed to, we will be failing in our moral duty.

I want to set this debate in the big picture. People voted for Brexit, and in December they voted to get Brexit done. It has taken us three and a bit years to reach this stage, and we will be leaving the EU in just a few days’ time. Then we will have to move quickly into negotiating the long-term deal. Time and again over the past few years, I have heard EU counterparts say, “The problem with the British Government negotiators is that we don’t know if they can carry Parliament with them.” It is so important that we send the message to the rest of Europe that what is agreed with the EU can be passed through this Parliament. That is why it is so important that we pass the withdrawal agreement that was agreed through this Parliament. Yes, there are important matters raised by these amendments. Of course we want to support child refugees; we always have done. Of course we must make sure that EU citizens’ rights—[Interruption.] And incidentally, we always will support child refugees. Of course we must also support EU citizens, but the right place to do that is in other legislation, not in this Bill.

In the last Parliament, the Home Affairs Committee produced a report calling for a declaratory system and also a physical document. It is possible to have a declaratory system that protects rights, but also to ensure an incentive for people to apply and get the document. If all of us in this House were suddenly told that our rights to get healthcare, rent a house or get a job depended on the workings of a Home Office computer system, we would have no confidence in it. That is why people want to know that there is a permanent document. I urge the Secretary of State to think again, because this will go wrong, and also just to accept the Dubs amendment. Do not put at risk or cast any doubt on this country’s commitment to child refugees.

I think we should be thankful that we have the opportunity to think again on these matters; I rather regret that we have so little time.

On the issue of a declaratory right, I am very open to the spirit of having a declaratory system. It would send a wonderful signal about how open we are and how welcome people are to stay, but the sheer truth of it—I say this as the former Minister responsible for domestic preparedness in the Department—is that it is way too late to be making this decision now. I am afraid the proposal shows rather an ignorance of how government systems work and of the whole business of delivering a system that can work for literally millions of people. If the proposal were accepted, we would have to abandon giving status to millions of people. It needs to be removed from the Bill, so that we can get on and deliver status for people in a system that is working.

On the Lords amendment to clause 26, the power is sunsetted to the end of the year. On the amendment from the noble Lord Dubs, this is one of those areas where we should be thankful that we are thinking again, but, bearing in mind that it is not long since we heard a general acceptance in this House of the proposition that we are all here to pursue the common good in good faith, it is deeply regrettable that some Members have sought to suggest that there would be any lack of commitment on our part to family reunion for refugee children. It is quite wrong. [Interruption.] The hon. Member for Airdrie and Shotts (Neil Gray) says that actions speak louder than words. We will earn the respect of the public by delivering.

One hour having elapsed since the commencement of proceedings on consideration of Lords amendments, the debate was interrupted (Programme order, 20 December 2019).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83F), That this House disagrees with Lords amendment 1.

Lords amendment 1 disagreed to.

The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).

Clause 26

Interpretation of retained EU law and relevant separation agreement law

Motion made, and Question put, That this House disagrees with Lords amendment 2.—(Steve Barclay.)

Lords amendment 2 disagreed to.

Motion made, and Question put, That this House disagrees with Lords amendment 3.—(Steve Barclay.)

Lords amendment 3 disagreed to.

Clause 37

Arrangements with EU about unaccompanied children seeking asylum

Motion made, and Question put, That this House disagrees with Lords amendment 4.—(Steve Barclay.)

Lords amendment 4 disagreed to.

Clause 38


Motion made, and Question put, That this House disagrees with Lords amendment 5.—(Steve Barclay.)

Lords amendment 5 disagreed to.

Motion made, and Question put forthwith (Standing Order No. 83H), That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments 1 to 5;

That Steve Barclay, Paul Blomfield, Jack Brereton, Thangam Debbonaire, Mr Mark Harper, David Rutley and Dr Philippa Whitford be members of the Committee.

That Steve Barclay be the Chair of the Committee.

That three be the quorum of the Committee.

That the Committee do withdraw immediately.—(Mike Freer.)

Question agreed to.

Committee to withdraw immediately; reasons to be reported and communicated to the Lords.