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European Union (Withdrawal Agreement) Bill

Volume 801: debated on Tuesday 21 January 2020

Report (2nd Day)

Relevant documents: 1st Report from the Delegated Powers Committee, 1st Report from the Constitution Committee

Amendment 17

Moved by

17: After Clause 35, insert the following new Clause—

“Involvement of the devolved administrations

After section 10 of the European Union (Withdrawal) Act 2018 insert—“10A Involvement of the devolved administrationsThe Joint Ministerial Committee (EU Negotiations) is to be a forum that meets regularly—(a) for discussing—(i) the United Kingdom’s future relationship with the European Union,(ii) the economic and security impacts of that envisaged future relationship on the constituent parts of the United Kingdom, and(iii) means of mitigating the impacts mentioned in subparagraph (ii); and(b) for seeking a consensus on those matters between Her Majesty’s Government and the other members of the Joint Ministerial Committee.”Member’s explanatory statement

This amendment would place the Joint Ministerial Committee (EU Negotiations) on a statutory footing, requiring the Committee to seek consensus on the way forward in terms of the negotiations with the EU.

My Lords, in moving this amendment, we seek to insert a new clause after Clause 35. We are doing this in a much slimmed-down version of the clause that was before the House in Committee as Amendment 29. We do this in furtherance of the objective of strengthening the union, in this instance through the second means to which I referred yesterday, by ensuring proper consultation. We seek to set out the short principle that the Joint Ministerial Committee for EU Negotiations should be a statutory committee with clear purposes. Nowhere does the amendment seek to prescribe how the committee is to work. Neither does it require the making of Statements, or anything else at all that might be thought to impede the proper conduct of the negotiations with the European Union. It is there simply to ensure that the principle is accepted on the statute that this committee has a clear and defined purpose.

I would have hoped that, in the light of the many speeches made in Committee, it is clear that statutory recognition of this committee is required, given the way, as so many described, in which it has operated. If that was not the case in Committee, I would have thought that the debates yesterday in relation to Clause 21 would have demonstrated to Her Majesty’s Government how important it is to deal with the position of the devolved Governments and legislatures.

It is a simple fact that our constitution has changed during the period in which we have been in the European Union. We must therefore achieve a workable set of constitutional provisions to make that constitution work with the Governments and legislatures in Wales, Scotland and Northern Ireland, and not simply with this legislature and the Government in London—otherwise the union will be imperilled. This is a small step towards that end.

The conduct of international relations and negotiations is clearly a reserved matter and, as I said yesterday, there are plenty of powers not only in the existing legislation but in the clause carried yesterday to enable Ministers to ensure that in the devolved Administrations the international obligations incurred by Her Majesty’s Government are observed. But surely the United Kingdom must recognise that those are powers of last resort, and that the proper approach is to involve the devolved Governments fully in the negotiations by consulting them and trying to reach a consensus.

As this very modest amendment makes clear, it is not in any way intended to impose a veto. It is simply a way of trying to persuade and ensure that the Government will act in such a way that they strengthen the union. It takes into account, and is seen to take into account, the interests of Wales, Scotland and Northern Ireland as expressed through their constitutional institutions. This question of perception is extremely important if the union is to be strengthened.

There is a further consideration. The effect of the arrangements relating to the Northern Ireland protocol is to give the Northern Ireland Government attendance at some of the meetings of the joint committee: that is, the joint committee for the negotiations between Europe and the United Kingdom. This amendment, relating to the Joint Ministerial Committee—it is unfortunate that we have two committees with very similar names—is designed to ensure that the other two nations have, and are seen to have, the opportunity of expressing their interests so that the UK Government can go forward, with everyone knowing that those have been heard. It is a striking fact that countries such as Germany and Canada manage to conduct international relations while respecting the competences of their states and the other institutions that make up their countries. Indeed, the EU itself has conducted its negotiations successfully by taking into account the interests of the 27 other member states.

I fear, however, that the United Kingdom Government have not caught up with the impact of devolution on our constitution. They really ought to be doing all they can to help those who seek to strengthen the union, by ensuring that devolved Governments are consulted in accordance with not only the spirit of the constitution but its letter. It is surely not too much to ask of the United Kingdom Government, as today the Welsh Government are considering the legislative consent Motion, to think again about doing something to put on the statute book a clear commitment to the Joint Ministerial Committee. This is a critical issue and, if a difference could be made here, it would be far better to see the union go forward to this important stage in the development of our nation with the consent of all the devolved Governments, and not to risk the Welsh legislature taking a different view.

Might I suggest that, if possible, the Government think again now and look at this proposed new clause? It does nothing more than embody what should be clear. I very much hope that, when the Minister comes to deal with this issue, he will give a possible commitment to this clause, but also a clear assurance that this committee is going to work as it should work—given that, as was so ably explained in Committee, it is not working. This is not a lot to ask; it asks to strengthen the union, and it is important that the Government should try to help those who wish to strengthen the union, because there are many who do not. I beg to move.

My Lords, I fully support the desire expressed by the noble and learned Lord, Lord Thomas, that there should be full consultation between the Government and the devolved Administrations and, indeed, the Assemblies in the devolved countries. I also fully support his plea for mutual courtesy and respect, but I question whether this new clause is appropriate. I doubt whether it is appropriate to lay down in statute the procedures for consultation between the Government and the devolved Administrations—to so formalise, as it were, the agenda that it is placed in a Procrustean bed. That could be too rigid and inflexible. Of course, as he urges, all concerned should seek consensus, which will be extremely important in ensuring that what emerges from the negotiations on the future relationship between the United Kingdom and the EU is viable in each of the devolved territories.

However, the achievement of consensus must be a matter of culture. I do not think that you can legislate for consensus. If you legislate and there is still not the good will and the willingness to give and take, along with the willingness to achieve mutual understanding, it will not work. So, strongly as I support the noble and learned Lord’s objectives in this amendment, the means that he proposes to achieve what we all desire may not be the right ones.

My Lords, I support the amendment moved by the noble and learned Lord. I do not know from whom I am quoting, but the Joint Ministerial Committee is a “poor thing, but our own.” It has not worked very well, because it has not met very frequently. There has been no programme, its membership has varied, and it has not been a particularly effective arrangement so far. Hence, in my view, it is important that it should be put on to a statutory basis, in which case a report would be made to both Houses of Parliament and we would know where we stood. So far, we do not know.

The devolved Administrations never know when the current Joint Ministerial Committee will meet. It is important, for the sake of the union, to achieve a consensus where possible. In our discussion yesterday on another amendment in the name of the noble and learned Lord, it was obvious that there had been no discussion with the Welsh Assembly. I fear that the Minister’s reply to our debate was less than persuasive. There is an alternative arrangement that could have been used under Section 109 for an Order in Council that would result in a consensual as opposed to an imposed change. Hence, I very much support the amendment in the hope that there will be a change of heart in Westminster.

I fear that there is still a denial in the Westminster establishment that devolution has taken place at all. It has been there for a long time now and it is part of our establishment. Legislators, particularly those who draft Bills for the Government, should recognise that the devolved Administrations have been set up within the United Kingdom and are there to further the union. I would hope that if this amendment is accepted, it would strengthen the union and put the committee on a proper basis, and then there would be an expectation of regular, frequent meetings with serious and senior representation of the Westminster Government.

My Lords, I am most grateful to the noble and learned Lord, Lord Morris of Aberavon, for his words in support of this amendment, which has my name attached to it. I reiterate the words of my noble and learned friend Lord Thomas of Cwmgiedd, who has made it clear that we are seeking to persuade the Government to think again.

I want to respond to some of the comments made by the noble Lord, Lord Howarth of Newport. Our amendment is not prescriptive; it simply requires that if there is a forum, it should meet regularly, but it does not stipulate how often it should meet. Meeting means face-to-face discussion, and the forum is there to discuss the means of mitigating the impact on the constituent parts of the United Kingdom of the economic and security aspects envisaged in the future relationship. It is to avoid problems arising in the future.

We have already heard that negotiations with the EU are likely to result in agreements that have a very direct impact on many aspects of devolved competence. I would like to highlight just a few of these, some of which are very close to my heart.

The first is the capacity of Welsh universities to access EU research funds and collaborative projects in the future. Over the last 20 years, access to these funds, and to the networks they have generated, has proved critical to boosting the research capacity of Welsh higher education institutions, including medical research. Indeed, a finding from Cardiff University made headlines yesterday about new ways to manage cancers. We have been reliant on, and have built on, the funds we have accessed. The interaction between projects funded by research and development framework programmes and those funded by structural funds has been particularly important, as the Welsh Government have demonstrated in their publication on research and development after Brexit. Whether and how the UK, and therefore Wales, can access these funds will be determined by the negotiations with the EU.

The second aspect—whether there will be any reciprocal arrangements in future between the EU and the UK to access health services—is again a matter for the negotiations. I would support such arrangements, but it needs to be recognised that if such commitments are made by the UK Government, it is the Welsh NHS that will have to pick up the cost of treatment provided in Wales.

The third issue is procurement rules. Procurement is a devolved matter, and the Welsh Government are certainly interested in strengthening the way in which procurement can support, rather than undermine, local purchasing. But we know that the EU, as part of the insistence on maintaining a level playing field, will start from the position that its approach to procurement must continue even post Brexit. Wales needs to have a voice in the discussion within the UK negotiating team about any trade-off between flexibility on procurement and unfettered access to the EU market.

I could give many more examples: the future of state aid rules governing the assistance which the Welsh Government may give to Welsh businesses; access to European markets for Welsh agri-food products, such as lamb, beef and seafood; and whether or not Welsh students and pupils will have access to the Erasmus+ programme of student exchanges—to name but a few.

The key point is that the Welsh Government and the Senedd will be bound by the outcomes of the negotiations, which will begin in only a few weeks. We have already heard that Ministers of the Crown have the powers to force the devolved institutions to comply if they disagree with these outcomes. In these circumstances, it surely makes sense for the Government to start from the position where the default is to reach agreement with the devolved Administrations in the approach to negotiations. Otherwise, I fear that the result will be bitter and very prolonged conflict between the devolved institutions and the Government, which would seriously threaten the union itself.

My Lords, I support the amendment and respectfully disagree with some of the sentiments expressed by the noble Lord, Lord Howarth. The Government can no longer afford the luxury of an underdeveloped and informal arrangement with the devolved Administrations. The proposed JMC needs to function properly and to meet regularly—ideally, frequently—to deal with the details of EU negotiations and future relationships with the EU.

If the Government want to maintain the union, which I believe they strongly do, they will need to treat the devolved Administrations with the respect that they deserve. Not least it is an issue of common sense. It is often not obvious to civil servants and Ministers here what impact their negotiations will have on the devolved Administrations. Very often it is simply a sin of omission: a failure to understand the full detail and significance of devolved powers and their impact on the countries concerned. That is understandable; after all, no one can be an expert in everything.

I have argued for years that the EU, as the origin of many rules and regulations and a source of funding, has taken the party-political edge off decisions it makes. As they are made on an EU-wide basis, they are not regarded as having party-political significance. Once that ends, I believe that the party politics will become quite vicious if we do not provide for proper channels of negotiation and discussion. The noble Baroness, Lady Finlay, has laid out that issue very ably. She also talked about the impact on many aspects of life in Wales. She referred in some detail to universities. I declare an interest as chancellor of Cardiff University, and I am aware that it looks constantly and in detail at the impact of each negotiation on the life of that university, on research funding and on research partnerships with institutions in Europe.

There is also the impact on Wales of the proposed, and rather confused, arrangements for Northern Ireland. As that agreement works its way through—I point out to noble Lords that the Government seem to have no understanding of what it means—it is bound to have a strong impact on Wales. The Minister will know that I am not given to flights of nationalist fantasy, nor is there any sympathy on these Benches for independence, either in Scotland or in Wales. However, bearing in mind again the words of the noble Baroness, Lady Finlay, I urge the Government to be careful what they wish for. I am well aware that there are many, both at official and at ministerial level, who still regard devolution as a bit of nuisance, yet another hurdle to be overcome and an unnecessary level of complexity, but it is well established and in Scotland nationalist sympathies are very strong. They could grow stronger in Wales if this is not sorted neatly and effectively.

At the very least, officials and Ministers here often do not understand the full implications of the decisions they make. That is what is behind this attempt by the Government to write the devolved Administrations out of the picture. It is easier to ignore them than to pay them particular attention. I say to the Government that if they succeed in ignoring the devolved Administrations, they may well live to regret it.

My Lords, the noble Baroness, Lady Finlay, put her finger on the nub of all this when she talked about trade-offs. Any agreement that we reach with the EU will be a series of compromises. If we have individual delegated bodies taking hard stands on one position or another, or indeed one industry doing that, we are never going to get the compromises that we need to get our deal through. That is why the noble Lord, Lord Howarth, is right: we cannot bind the Government’s hands on this issue. The noble Baroness, Lady Randerson, acknowledges that the union is very important to this Government; indeed, it is to all of us in this House, I think. Are we really going to sacrifice the union by reaching arbitrary decisions that discriminate against one part of the union or another? No, of course we are not, but we need to make compromises and the Government should not have their hands tied by individual bodies or regions of this country taking a hard line on one position or another.

My Lords, I have my name to this amendment, but I rise with some trepidation. I will try not to have a flight of nationalist fantasy, as the noble Baroness, Lady Randerson, put it a moment ago. I hesitate to bring a discordant note. We hear a lot about the strengthening of the union. We must ask ourselves exactly what we mean by that. If it is to make the union work more effectively and harmoniously, be more sensitive to the needs outside Westminster and Whitehall and have greater empathy, of course that is highly desirable. However, I wonder whether that is the case. If it is to strengthen the grip of Westminster and Whitehall and impose policies that are not in the best interests of Wales, Scotland and Northern Ireland, that clearly will cause a lot of bitterness. The mechanisms that we are talking about here are to avoid that sort of bitterness arising.

I would have thought that it was patently in the interest of those who want to hold the United Kingdom together in its present form that at least some movement is made to ensure that clashes do not arise from differences of aspiration or even a misunderstanding between the Governments of the various nations of these islands. We need Westminster to be sensitive when there are universally accepted reports on changes in the relationship, such as in Wales in relation to the legal systems. The noble and learned Lord, Lord Thomas, brought up an excellent report, the Silk report, which suggested changes for the police and prisons. When those are universally accepted in Wales and totally ignored year after year here, it is hardly surprising that there is some feeling that the system from the centre fails to work in the interests of every area.

It is very relevant that this issue arises in the context of European legislation. Noble Lords will remember that in 1979, very shortly after we joined the European Union, there was a referendum in Wales in which the vote went 4:1 against having a devolved Government. The noble and learned Lord, Lord Morris, was very much involved in that. Several factors led to the changes between 1979 and 1997 when there was a very small majority, but still a majority, in favour of establishing a national assembly. One of the factors was the advent and development of the European dimension. With this came acceptance of a multilayered system of democracy and that the principle of subsidiarity that runs through the European vision was relevant within these islands. Some things within the strictures that we have are appropriate to be discussed and decided at Westminster, some—until the end of next week—on a European level and some that are more appropriate on a Welsh, Scottish or Northern Irish basis.

It seems there is a possibility now of turning the clock back from the vision that had developed over the last 40 years to what existed before 1979. If that is the case, that is the most likely thing that will drive a change, forced from the periphery, in the structures of these islands. It is the sort of change that many noble Lords have mentioned and are fearful about.

In the context of this specific amendment, all that is being asked for is a provision for a systematic approach that takes into account the needs of the devolved nations. That is not an unreasonable thing to look for. The fact that Northern Ireland yesterday, Scotland before, and probably Wales this afternoon will refuse the orders that are being requested in the context of this Bill is surely an indication that something has been got wrong from the centre.

I urge the Government to look at this amendment in that context and to see it as an opportunity to build a better, more harmonious relationship, rather than just stamp on it and hope that the feelings in Wales, Scotland and Northern Ireland will just go away.

My Lords, may I raise a short constitutional question that came up last week and which relates to this? In our debate on Clause 38 last Thursday, the noble and learned Lord, Lord Keen, from the Government Front Bench said that Dicey is the absolute authority on parliamentary sovereignty. Dicey’s view on parliamentary sovereignty was that it was indivisible, that it cannot be shared upwards or downwards. His views were strengthened by his bitter opposition to the whole idea of home rule either for Ireland or for Scotland. He believed strongly that the imperial Parliament was therefore the only authority of British imperial law.

That doctrine of parliamentary sovereignty, strongly held, is of course one reason why those who wish us to leave the European Union have objected to the whole principle of European law interfering with the sovereignty of British law as defined by Parliament. It seems to me, therefore, that as part of the process we go through as we leave the European Union, and as we proceed towards some sort of constitutional convention, we will have to redefine the doctrine of parliamentary sovereignty so as to accept that these devolved Assemblies —these devolved nations—have more than the occasional permission of the Westminster Parliament to do as they wish, and that they have certain entrenched rights that are not compatible with the doctrine of parliamentary sovereignty as defined by this rather prejudiced, late-Victorian lawyer.

My Lords, some of the speeches have painted on a large canvas. I would like to focus on the amendment itself. I am reminded of a discussion here yesterday about the possibility—perhaps fatuous—of moving this Chamber to York in the name of reaching out to the population of this country. I mention that because, 20 years ago, in the name of reaching out to the country at large, the devolved Administrations came into being. The 20 years in between have offered enough evidence of the fact that you do not just bring things into being; you support and sustain them by developing a relationship that enhances partnership between the devolved bodies and the United Kingdom Parliament. I wish that people on other Benches would realise just how disappointed people in the devolved areas are about what has happened over the last 20 years and the way in which—begrudgingly, as it seems to them—some concessions and developments have come into being. I just wish people could feel that.

I have three children. When they were growing up, as teenagers, the most important aspect of parenthood that we had to learn was the moment when you establish trust. You move away from authoritarian modes of existence with your own children, and you trust them, even when sometimes they make mistakes. It seems to me that, in this amendment, we are asking simply to give visibility to a stance that we could describe as trust; that is the heart of it. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said, it does not seek to change the provisions of the Bill; it just says that we should trust each other as we go along.

I would be surprised if I am the only one who has had to educate myself, because the new clause proposed by the amendment would, if accepted, go in after clauses that describe the UK-EU joint committee, and it is terribly confusing to talk about the Joint Ministerial Committee in the context of movements that bring that joint UK-EU committee into being. It does not end there, because we are talking about the Joint Ministerial Committee European Union sub-committee. The action we are trying to establish good relations for is what will happen in the discussions with Europe to bring about our ongoing relationship, in the period following the enactment of the Bill. We should therefore remember that we are looking to have these things written into the Bill to apply for a limited period.

My noble friend Lord Howarth is quite right: of course you cannot legislate for the processes of consultation. He went on to say that willingness cannot be legislated for, but unwillingness might necessitate legislation—and there has been unwillingness. There is a lack of empathy. Even the noble Lord opposite spoke about hardness and refusing to accept a position that will create difficulties. That is never in anyone’s mind at all.

I go back to discussions in Committee and the intervention made by the noble Lord, Lord Kerr, who said:

“The best option would be to include representatives of the devolved Administrations in the negotiating teams that go to Brussels when the subject for discussion is going to touch on the competence of the devolved Administrations.”—[Official Report, 15/1/20; col. 672.]

If they are going to discuss the competence of the devolved Administrations, is it not fair and proper that those from the devolved Administrations most affected might be there to add their voice to the discussions? Is that not reasonable? Are we not talking about common sense?

We are looking at this in a binary way, thinking that everybody who has a different view is somehow invested with animosity towards the Government. We are talking about bringing out of all this something that stands up and appeals to people on the basis of common decency and fair play. I am happy to rest my case there.

My Lords, we strongly support Amendment 17, without which the whole nation of Wales could be excluded from preparing for input into the UK-EU negotiations. As the noble and learned Lord, Lord Thomas, said, and as the letter of 16 January from the noble Lord, Lord Duncan, to your Lordships sets out—I hope people have now got it—the Government have promised that representatives of the Northern Ireland Executive will be invited to be part of the UK delegation and to take part in any meetings of the joint committee discussing Northern Ireland where the Irish Government are involved.

That guarantee is welcome; I do not undermine that at all. But where is the equivalent recognition that, where the specific issues of other constituent parts of the UK are discussed, they too can be at the table, or at the very least be assured that the JMC on EU Negotiations has been briefed and will feed into Her Majesty’s Government’s negotiating position with the EU? The Government are seen as giving scant regard to the devolved authorities’ interests and legitimate role in the negotiation, which is why a statutory role is needed. As my noble and learned friend Lord Morris of Aberavon said, the voluntary way has not worked sufficiently well.

If the Government were to disagree with the view that the Joint Ministerial Committee should be statutory, and if they share the view of my noble friend Lord Howarth, there is still a non-statutory alternative available: for the next meeting of the JMC to adopt a process whereby the devolved Administrations had meaningful engagement with the negotiations, including an expectation that UK Ministers would normally agree with the devolved authorities on the negotiating position in relation to issues within devolved competencies. The sorts of issues we have heard about include Erasmus, Horizon, reciprocal healthcare and citizens’ rights in local and devolved elections.

Both for the Assembly and for this Parliament, and indeed for the people in the devolved authorities, agreement on this process should be made, and made public—not the details of the negotiations, but the assurance that the devolved voices are being heard. We would also welcome the creation of a quadrilateral fora, building on what is already there at ministerial level, to handle some of the detailed negotiation.

None of this detracts from the timing of the talks, or from the ability of the UK Government to take full account of the whole of the UK. It does not add a veto, and it would still allow for the sorts of compromises that would be needed, which the noble Lord, Lord Hamilton, spoke about. But it would add some of the trust that my noble friend Lord Griffiths said was needed, and ensure that the special interests and competencies of the devolved Administrations, including in relation to implementation, were fully factored into the negotiations, and thus part of developing a working and successful partnership with the EU, as the noble Baronesses, Lady Finlay and Lady Randerson, spoke about.

My Lords, I am grateful to the noble and learned Lord, Lord Thomas, and indeed all noble Lords who have spoken on the amendment. I feel that it is appropriate for me to start by saying something with a degree of emphasis about the Joint Ministerial Committee, which, I have to say, has received an undeservedly negative press from some noble Lords, both in Committee and today.

The Government have a high regard for the Joint Ministerial Committee structure and have engaged with the devolved Administrations through it, and indeed through numerous other means, throughout the EU exit process. The Joint Ministerial Committee on EU Negotiations, which I will call the JMC (EN), was established in the months following the UK’s decision to leave the EU, and it has met 21 times since November 2016. From the Government’s point of view—and, I hope, from everyone’s—it has proved an invaluable forum for the exchange of information and views between the UK and the devolved Administrations.

Proposals for intergovernmental engagement on the next stage of negotiations formed a large part of the most recent meeting of the Joint Ministerial Committee on EU Negotiations earlier this month, and are due to be discussed again at the next meeting of the JMC (EN) next week—chaired, if my memory serves me right, by the Welsh Government.

I hope that I can give a sense of how effective a forum the JMC (EN) has been for discussions on the Bill. The Bill was first discussed at the JMC (EN) in the summer of 2018, when we gave the devolved Administrations the opportunity to feed into the White Paper. We then used the forum to share our thinking on policy development through the autumn and winter of 2018, sharing iterative drafting on the Bill. It was through these discussions that we made changes to the Bill to address the concerns of the devolved Administrations. This included providing them with an important role in appointments to the board of the IMA, both in the Bill itself and through ministerial commitments.

I therefore do not accept that the JMC (EN) has been either inactive or ineffectual. On the contrary, it has contributed significantly to both ministerial and official engagement between the UK Government and the devolved Administrations, and that is exactly the way we mean to continue.

The amendment seeks essentially to set the joint ministerial arrangements in concrete. It remains the Government’s firm view that it is not in the interests of the UK Government or the devolved Administrations to place the terms of reference of the JMC (EN), or the memorandum of understanding on devolution, on a statutory footing. The noble Lord, Lord Howarth, and my noble friend Lord Hamilton of Epsom were absolutely right in what they said.

The noble Lord has heard serious warnings about the potentially dangerous consequences of a failure by the Government to consult adequately and work closely with the devolved Administrations. He will know that, in Wales, his rather upbeat assessment of the achievements and benefits of the Joint Ministerial Committee is not widely shared. If he will commit the Government, on their honour, to consult and work closely with the devolved institutions, along the lines laid out in this amendment, that would do a very great deal to improve trust and confidence and ensure good, practical outcomes. Will he do that?

My Lords, I say again that it is our absolute wish and intention to engage constructively with the devolved Administrations over the negotiations ahead of us.

Intergovernmental relations have always operated by the agreement of the UK Government and the devolved Administrations. We wish that pattern to continue. The existing terms of reference of the JMC (EN) were agreed jointly in October 2016. In my view, and indeed in others’, those terms of reference have served us well, but to set the terms of reference in legislation would inhibit this joint process. Apart from anything else, to legislate for this would anticipate the outcome of the review of intergovernmental relations, due to be discussed with the devolved Administrations next week at the JMC (EN). Putting the terms of reference of the JMC (EN) in legislation would pre-empt those conversations and restrict the ability of the various Administrations to develop future intergovernmental structures, such as the JMC (EN), to reflect the constitutional relationship between the UK Government and the devolved Administrations once the UK leaves the EU.

I hope noble Lords will appreciate how important it is for the JMC (EN) to have flexibility in its role to develop and adapt as the negotiations progress. Indeed, the terms of reference proposed in this amendment seem to be narrower than the existing agreed terms of reference, which refer to

“issues stemming from the negotiation process which may impact upon or have consequences for the UK Government, the Scottish Government, the Welsh Government or the Northern Ireland Executive.”

This amendment would restrict the focus to economic and security matters. In fact, I believe that, if one reads the current terms of reference in full, one will find that they are miles better than those suggested in the amendment.

The essential point remains that a fixed statutory basis would not support the flexibility required to ensure that the JMC (EN) can operate as effectively as possible, which is what we want it to do. I hope I have provided noble Lords with assurances of the Government’s commitment to work collaboratively with the devolved Administrations to discuss their requirements of the future relationship with the EU. In the light of those assurances, I respectfully ask the noble and learned Lord to withdraw his amendment.

My Lords, I am grateful for what the Minister has said, but I fear that we have to address the issues of devolution and our changed constitution, and the sooner we do that the better. Looking to put matters on the statute book seems to me inevitable. However, in the light of what has been said, disappointed though I am that the noble Earl, Lord Howe, would not give the commitment that I asked for, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Clause 37: Arrangements with EU about unaccompanied children seeking asylum

Amendment 18

Moved by

18: Clause 37, leave out Clause 37

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.

My Lords, I have had a chance to read again the detailed debate in Committee on this issue. What I have to say is influenced by what I heard then and what I have read. I repeat my gratitude to the Ministers for the time they have given me on these three occasions, once on the phone and twice in meetings, to give me their point of view on the issue. I am also grateful for the support I received from many parts of the House, including from Members on the Conservative side. No names, of course, but I appreciate those words of encouragement.

I refer to the Salisbury convention, which came up last time. The Minister justified the position by quoting from the Conservative manifesto:

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

I do not believe that that is an argument against this amendment. This amendment is very specific indeed. It is about family reunion, and much too specific to be covered by this blanket provision in the Conservative manifesto. I believe that we have an entirely new issue, which could not have been foreseen when the Conservative manifesto was published or during the election campaign.

May I remind your Lordships of the history behind this amendment. In 2018, I moved an amendment, to a previous Bill, to provide that the existing provisions of the Dublin treaty, of which we are members as an EU country, for family reunion should be carried through in the negotiations for when we leave the EU. We have an arrangement whereby a child in one EU country who has a relative in another can apply to join those relatives.

It is a very simple and basic matter of family reunion. We want to be sure that this will be part of the negotiation and that the provision would be retained even after leaving the EU. Through a large majority in this House, that became part of the Bill, was then endorsed by the Government and became part of the 2018 Act, although there was no vote in the Commons. It is that provision which the Government are seeking to delete in this Bill, and my wish is to retain the 2018 Act as it stood. It is a very simple point: I would have thought that family reunion is one of the basic things that we all have to believe in.

If there are young people who have worked their way half way across the world, sometimes in hazardous conditions, from war and conflict in Syria or Afghanistan, and their incentive is that they have family here, surely it is right that we take note of that and not close the door on them. We all know how awful the conditions are for refugees in northern France and on the Greek islands. I have been there a few times, as have other Members of this House. It is shocking that young people, and others of course, are sleeping under tarpaulins near Calais or on the Greek islands in dangerous conditions where the children are liable to be sexually assaulted at night because there is not enough security. All these things are simply dreadful.

It is not surprising that those who have reached northern France seek to come across illegally, in dinghies or often in the back of lorries. The traffickers take full advantage of that. That is why, by giving young people legal routes to safety, we are thwarting the traffickers as well as being humane in giving them an opportunity to join family members here. Unfortunately, the sort of debate that we have had sends a dangerous signal to young people, particularly in Calais and on the Greek islands if they can get away from there, and they will seek to do what we would all do, which is to say, “Well, if we can’t join our relatives legally, we’ll find another way of doing it if we can afford to pay the trafficker.” Surely that is not a resort that we wish to impose on young people. Family reunion is one of the safe legal routes.

The Minister today will of course talk about the number of refugees and child refugees whom this country has taken. That is good, but of course a large number of them have come illegally. They have arrived in Dover or often somewhere else on the south coast and we have taken them in; they have claimed asylum. That does not justify the Government saying, “Well, we’re doing this anyway. We don’t need to do any more.”

I have been thinking hard about what Ministers have said to me about why they do not like this amendment. I am bound to say that I do not fully understand the argument, and a lot of people to whom I have spoken do not either, but I may have missed something. The Government first told me that the provision in the 2018 Act was in the wrong Act. I do not think they said that when they accepted the amendment, but they said that it should not be in the Bill at all. Furthermore, Ministers have said to me, “Actually, if you want it in a Bill at all, it should be in the immigration Bill, which is coming along, so wait for that”; “Actually, you don’t need it in an immigration Bill. You should have it in immigration rules. You don’t need any legislation at all. Can’t you take our word for it?”

The Immigration Rules do not work in respect of international arrangements, so I do not think it a good enough argument. As for the immigration Bill, that is some time in the future. I am told that it will come this year, but we do not know what will be in scope. The Government Benches may look at opposition parties and say, “Well, you’ve got something as an Act. Accept that it is being removed and maybe another Act will come along and you can do it then,” but that is not how opposition works, and it is not how scrutiny of the Government works. Surely when we can take the initiative, that is what we will do.

It is interesting that the Government approached the EU some time ago on this issue. I understand that there has been no reply yet, which we can perhaps accept for the moment, but I do not know what persuaded the Government to do it were it not that it was in the 2018 Act. Why did the Government seek to write to the EU about a provision that would have died after we left the EU unless they wanted to continue it? I am not totally clear what the point of that letter was.

I am also slightly puzzled as to whether the Government have been writing other letters to the EU that we do not know about yet in anticipation of the negotiations that will start at the end of this month, but that is perhaps too wide a question for this debate.

I want to say the following as calmly as possible. Ministers have also said to me, “This is a matter of trust.” Well, yes, I trust individual Ministers when they look me in the eye and say that that is what they believe—of course I do—but I look also at the behaviour of the Government as a whole, either before the election or now. I remind the House that when we had the 2016 Bill before us, I moved an amendment to help children who did not have family here. That was strongly opposed by the Government; in fact, the then Home Secretary, the right honourable Theresa May, urged me to withdraw the amendment and we had to vote it through. Eventually, after it went backwards and forwards once or twice, the Government accepted the amendment —Theresa May asked me to go and see her and said that the Government proposed to accept it. But it took a bit of argument; it would not have happened automatically.

Similarly, we had to vote on the 2018 measure that I have just referred to. The Government did not say that it was okay. They did not say that we did not need it; they just opposed it. So it is difficult to be faced with a question of trust. Of course I trust individual Ministers, but I do not trust the Government as a whole, if I can draw that distinction.

In Committee I quoted from a letter that the noble Baroness, Lady Williams, wrote on 13 January. I am still puzzled by it and still not fully clear what it meant, as I do not think my question was answered. With the tolerance of the House I will quote it again:

“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.”

I am still puzzled by one or two things. One is the

“traditional division between Government and Parliament.”

I think that debates about Brexit and all the challenging issues coming from Brexit have challenged some of the traditional divisions between Government and Parliament anyway. We are no longer where we were and we need to accept that. I am also puzzled that

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

The Minister assured me that we were no longer going to consider refugee children’s family reunion rights as a bargaining chip, so “negotiations” must mean something else. On a more positive note, it might mean that we are going to negotiate as the 2018 Act said. Maybe we are going to negotiate to continue the provisions of the Dublin treaty. If that is what was meant, okay—but that is not what the Government have been saying. I am trying to help the Minister by saying that that is perhaps a more charitable interpretation.

I will draw my remarks to a close. Of course, not all public opinion agrees with this, but I have a sense that public opinion has been broadly supportive of child refugees and of our humanitarian obligations as a country. If the argument is put to the British public, they tend to respond positively. I am not arguing about immigration as a whole but about child refugees.

My Lords, just before the noble Lord concludes his very persuasive remarks, can he put into context for the House the numbers of unaccompanied children we are talking about? In the context of World Refugee Day last year, with 70.8 million displaced people or refugees in the world and a further 37,000 becoming displaced every day, the modesty of what was incorporated by your Lordships’ House and put into law should speak for itself. Will the noble Lord remind the House of the small numbers of the most vulnerable people of all that the amendment deals with?

I am grateful to the noble Lord. I am not sure that I have every figure at my fingertips, but let me do my best. Section 67 of the 2016 Act covered children being able to come to Britain without having family here. The Government capped the total at 480. I understand that we are quite well short of that, even today. The Government said the number of 480 was limited by the ability of local authorities to find foster families. That is not the case with children joining their relatives here, where clearly local authorities do not have to find foster places. I think, to date, several hundred children—the Minister may correct the figure—have come under the family reunion provisions in the Dublin treaty. We might be talking about 800. Without having the exact figures, we are probably talking about 1,000 or 1,000-plus in the Greek islands and in northern France. In the context of the international situation, that is very few.

The Minister said that we have taken a certain percentage of the EU total. Yes, we have, but probably only in relation to the size of our country. I do not dispute the figure from the Minister. However, refugees in a wider sense are going to be the most challenging issue to the whole world, and certainly to Europe and ourselves, over many years. But what we are talking about here is a very small number of children, who will be positively affected by this measure. That is why I am pretty keen on it. We had a small demo in Parliament Square yesterday, with a lot of people supporting it. We have had more than 200,000 signatures on a petition supporting the provision. I believe that we are essentially on the side of public opinion. I believe that we are essentially on the side of humanity. I beg to move.

My Lords, I supported the noble Lord, Lord Dubs, in Committee and I support him now. I need to declare an interest as a trustee of the Refugee Council. I also need to declare total bafflement; I have absolutely no idea why Clause 37 is in this Bill. I do not understand what the Government are planning to do. I took part in Committee and, after speaking on this, I listened to the Minister at Second Reading and am still none the wiser as to why it is here.

What is on the statute book now in the 2018 Act is a commitment that the Government will seek to negotiate a reciprocal arrangement for these poor children. This clause repeals that requirement and replaces it with a commitment, in almost exactly the same terms, to make a statement to Parliament, which is not a very strong commitment. Why do the Government want to repeal the 2018 Act in this respect? We have heard three possible explanations: first, that it is unnecessary to keep this on the statute book because the Government intend to negotiate on this matter, and the Minister told us that a letter had been written; secondly, that it was always inappropriate to the 2018 Act; thirdly, that it is important not to tie the Government’s hands.

I do not find the first explanation very easy to understand. If the Government are seeking to negotiate and have written a letter designed to open negotiations on this matter, why should they want to repeal the commitment to negotiate? It does not make any obvious sense. On the second argument, regarding inappropriate positioning in the 2018 Act, they say it is much better to put it in the new immigration Bill. But there is no new immigration Bill as yet, and these negotiations are about to start. Also, the Government are not removing from the statute book any reference to this issue; they are replacing it with the language we see in Clause 37. If the 2018 provision was inappropriately placed, the 2020 provision that the Government seek is inappropriately placed. I do not understand that one.

Moreover, it is not a matter appropriate to an immigration Act, because what we have in the 2018 Act and in this Bill is a reciprocal requirement. The idea is that the Government would negotiate to ensure that the 27 would be willing to take poor children in this country who are in this plight and enable them to join their family elsewhere in the 27. The provision for the emigration of small children would be highly inappropriate to an immigration Act or immigration regulations. I believe it follows that the argument about it being inappropriately placed falls.

The third argument is still more difficult and slightly awkward. I am sorry not to see him in his place, but at Second Reading the noble and learned Lord, Lord Keen, said:

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

The noble Baroness, Lady Williams, said that the Government do not wish to see their hands tied. However, nothing in the 2018 Act would tie their hands; they must seek to negotiate. We are not saying that they cannot conclude a deal unless they have successfully negotiated. For myself, I do not think it likely that the negotiation on this point would fail, but we are not saying that if it did, everything would be off. We are simply saying that the Government should have a go. I do not see how that would tie anyone’s hands.

This is where it gets awkward. Having tried to understand all three of the arguments advanced by the Government, one is left a little suspicious. The noble Lord, Lord Dubs, has reminded us that his 2016 action on unaccompanied children was hotly resisted by the Government. We also recall, as he said, that when we were promised at the Dispatch Box that 3,500 of those children would be let into this country—we were not allowed to put that in the Bill, because it would have made it a money Bill or something—we were given a promise, but only 480 children have actually been looked after.

When one remembers that the 2018 provision was hotly opposed by the Government, one is left slightly suspicious that they do not intend to negotiate very hard on this. Perhaps they envisage it as a concession: a pawn that can be given away in negotiations to secure something more important. I do not think that that is what the country thinks. Wearing my Refugee Council hat, I agree with the noble Lord, Lord Dubs, that there is a lot of evidence that the country is taking this very seriously and that of all the issues we are discussing on the Bill, some of them important constitutionally and some politically important, this is probably the one which has the most public resonance. These unfortunate children should be looked after, so why the Government should want to take off the statute book a commitment to do so is something that the public will not understand. I strongly urge the Government to withdraw this clause, and if they do not, I hope that the noble Lord, Lord Dubs, will seek to press his amendment.

My Lords, I speak once more from these Benches, recognising that the argument has been made again and again. I am honoured to follow the noble Lord, Lord Kerr, and to concur with all that he said. As my right reverend friend the Bishop of Worcester reminded the House last week—he kindly spoke for me because I could not be present in Committee—this debate resonates with the nativity story, the story of a child fleeing persecution. The voices of these children are too often drowned out by conflict and violence, by traffickers and by political leaders. Let this House speak on their behalf by voting for the amendment.

I shall try to explain again why the Government’s change is proving to be so difficult for those who work with migrant children to accept, and thus why many in this House find it difficult too. As the noble Lord, Lord Dubs, reminded the Committee and then the House just now, the Government opposed his amendments on previous occasions. The law as it stands was hard fought for; it was not easily won. Thus, the proposed removal appears to be the Government saying, “Well, we never really wanted the Dubs amendments, so now here is a chance to remove them.” I note that in the Conservative Party manifesto there is a reference to welcoming refugees, but the lack of a specific reference to child refugees and family reunion simply adds to public concern.

I fully accept the Minister’s personal commitment to migrant children. I also accept that there is every intention to offer a welcome and maintain family reunion, but what the Government’s proposals have conveyed is quite the opposite. I wrote to the Minister with a suggested compromise, accepting in my letter that it might not work as a proposal, but I am struggling to understand why the Government cannot see that the message they are conveying at present is a negative one, whatever their good intent.

From these Benches, my right reverend colleagues and I view this issue as a moral bell-wether for the future of our country. We want to be known as a country that is welcoming, compassionate and committed to playing our full part in responding to the deep issues that arise from the reality of refugees around the world. I believe that the Minister and the Government want to act with compassion; it is simply that what is proposed does not convey this.

The noble Lord, Lord Dubs, mentioned that, for some, this is cast as an issue of trust. Do we trust that the Government will deliver their promises to vulnerable children without legislative assurance in the EU withdrawal Bill? However, to my mind, this is a matter not simply of trust but of priority. Where do the Government’s priorities lie? It is important that they can negotiate a good deal for this country with our European neighbours, but we cannot set this against our responsibility to protect vulnerable children. That is what Clause 37 suggests: that the Government’s priorities necessarily mean that we cannot give legislative assurance that we, as a nation, will provide for vulnerable children to be reunited with their families in safety. I am sure that that is not the Government’s intention, but our actions testify to our values. The action of including Clause 37, removing the family reunion obligation from primary legislation, speaks louder and will be heard further beyond this place than promises of other legislation yet to be enacted.

Ensuring that there are safe, legal, effective and managed routes for child refugees to be reunited with their families in this country must remain an imperative. Schemes such as community sponsorship—here I declare my interest as a trustee of Reset—are an international gold standard for how to welcome refugees and provide new opportunities for those who have lost so much. We can hold our heads high because of the Government’s work in recent years to support refugee resettlement here. Now is not the time to contradict this good work with the consequences of Clause 37. Will we be open, sharing our prosperity and opportunity with children who deserve so much more than the precarious life of a refugee and have so much more to offer, or will we be closed to them, shut off from the world and our responsibilities as a global power? I believe the choice is clear, which is why I have added my name to this amendment. I urge others to support it and the Government to accept it.

My Lords, I too have added my name to this amendment, as I did at the previous stage. Like others, I thank the noble Lord, Lord Dubs, who is in danger of becoming a noun. I have been wondering whether and actually hoping that Clause 37 might be the result of the attentions of—if I can put it this way—an overly diligent draftsman who has failed to see the wider picture of how this looks; in modern parlance one would say the optics. We were told that a statutory negotiating objective is neither necessary nor the constitutional norm. It might not be necessary but it is not unnecessary either, and is the constitutional norm such a straitjacket of a convention that we cannot say what we mean in legislation?

As ever, the noble and learned Lord, Lord Mackay, put the constitutional point very clearly at the previous stage. He said that Clause 17 of the 2018 Act is

“an instruction to the Executive to open negotiations in a certain way”,—[Official Report, 15/1/20; col. 760.]

and that it is not up to Parliament to give instructions; I hope I have represented him properly. But as noble Lords will recognise, and as the noble Lord, Lord Kerr, has said, Section 17 is only about opening the negotiations and seeking to negotiate. Without even getting into the relationship between Parliament and the Executive, where is the harm? Even if it is not how it is normally done and even if it is not terribly elegant, it makes Parliament’s view clear and it was accepted by the Executive in 2018.

I am on the same page as the noble Lord, Lord Kerr. I am puzzled and a bit suspicious, because when there is a rather technical point or amendment—we are being told that this is a technical point—on a sensitive issue, my antennae naturally twitch. The more the Government tell us that they are not making any real changes, although they have changed the words, the more my antennae wave around, trying to catch hold of what this is all about. I am not surprised that the phrase in the Minister’s letter about carrying out negotiations

“with full flexibility and in an appropriate manner across all policy areas”

was much referred to. Section 17 does not restrict that, although it does not mention reciprocity, as the Government did—but I do not think that that is material.

I raised a point last week about the differences in the wording for the child’s “best interests.” Under the existing provision, the child’s best interests are referred to in the context of coming to the UK. Clause 37 applies the best interests to joining a relative. I think that both of those are important. The Government assured us that there was no significance in that, but I do not want to let something that might be important go unchallenged. The Minister referred me to the term “equivalent circumstances”—she is nodding at that—but it is not in the same part of the clause. It is in subsection 1(b) rather than 1(a), so I do not think that that answers my “best interests” question. I also asked the Minister last week if she could make available a copy of the letter sent last October to the Commission which she said should reassure noble Lords, but she was not sure whether she could. As she has not been able to pursue that, I assume that it is not available, but perhaps she could confirm that.

I come back to the proposed change. It must mean something. It does not make the very modest objective of Section 17 any more achievable—certainly not to most noble Lords who have spoken. Noble Lords will understand that given the subject matter of the clause and the relatively few individuals subject to it, there is a strong feeling that Parliament should not reduce our commitment to these children to safe and legal routes or–this was a point made by the right reverend Prelate—to be thought to be doing so.

My Lords, as the noble Lord, Lord Dubs, made clear in his opening remarks, this is a question of trust. He seemed to suggest that he trusted my noble friend the Minister but did not trust the Government. I am not sure how happy my noble friend is about being described as a sort of semi-detached member of the Government—but let us ignore that. Actions speak louder than words. The Government have a very credible record in allowing child refugees into this country. I think we run third among EU countries that have allowed in child refugees. Given that, the only basis on which this amendment can be supported is the belief that, if it is defeated, the Government will then stop taking in any further child refugees. I think that that defies all credibility; I do not think that there is any possible basis to support that thesis and I take the view that we have done very well on the question of child refugees and that if it’s not broke, don’t mend it.

My Lords, in listening with interest to what the noble Lord has just said, I entirely accept that the Government have done some very good work. We heard of it from the Minister last week and we ought not to undervalue the extent to which the Government have brought children to this country, but we are talking about a very small group. The noble Lord, Lord Alton, asked the noble Lord, Lord Dubs, about this and it might be 1,000. Among the children about whom we are speaking, this is a small group who have rights only under Dubs III.

I may have unintentionally misled the House last week, for which I apologise, by making a comment when I felt so strongly about this matter that I got carried away. I did not read my notes and led the House to believe that there was some English law providing a right for children. I was wrong and was rightly corrected by the noble and learned Lord, Lord Mackay, who kindly did not refer to me when he set out the existing position, which is that Dubs III—I am sorry, it is Dublin III, although one really ought to call it Dubs III—comes to an end in January 2021. Of course I trust the Minister and have huge respect for her genuine commitment to children, but what I am concerned about is urgency.

Given everything else that goes along with Brexit, it would be very easy for this Government, intentionally or unintentionally, not to have a priority regarding these children, a point made by the right reverend Prelate. What we need is to retain the sense of urgency. We do not find that in Clause 37, but we have it to a greater extent in Section 17 of the 2018 Act. It does not take us all the way, but it includes the requirement for things to happen. I am not happy, with everything that has been said today and everything that I fear may be thought behind the scenes, that this will be dealt with having a proper regard for urgency. From January next year these children, who have a right to come to this country and are among the most deprived and vulnerable children in the world, will lose the right to do so unless a degree of realism and urgency is injected into the Government.

My Lords, I agree entirely about the lack of urgency. I also feel that there is a lack of enthusiasm for any sort of legislation that would mean more possibilities for people to come to the United Kingdom for sanctuary.

I remember with great sadness the day some years ago when we voted on the amendment of the noble Lord, Lord Dubs, and I saw the Tory Benches trooping through the Not-Content Lobby. I really felt so sad then. In the years since, I have been quite assiduous in dealing with these matters and the Minister must be tired of my contributions. But in 12 years, the only change I have managed to make is that the Azure card has been changed for the Aspen card. It is just a card giving £35 in one way or another. Asylum seekers still have no right to work until 12 months are up, and even then only from a restricted list. We still have indeterminate detention. In 2005, 17% of Home Office decisions were overturned on appeal, while last year and in the previous years it was about 40%. We still see a tremendous reluctance on the part of the Government to move, which is why I am totally opposed to removing any sort of legislation in the European agreements to protect child asylum seekers.

I will not speak for long because I have talked about this a great deal over the years, but I will make a plea to the Government. There are so many decent people on their Benches and yet, when we had the previous vote on the amendment of the noble Lord, Lord Dubs, some years ago, they voted against the rights of children. There is now an opportunity to strike a new chord: to offer hospitality rather than hostility to arrivals seeking sanctuary in the United Kingdom.

My Lords, I share an admiration for the noble Lord, Lord Dubs, with almost every Member of this House. He has been determined and dogged on this issue. Perhaps I speak more as a former Home Office Minister in this House than as a former Chief Whip when I say I understand the arguments. I can see where the noble Lord, Lord Dubs, is coming from, but this Bill is about providing a framework under which the Government can enter negotiations and withdraw from the European Union on the 31st of this month.

We know what the Government have said all through the period of negotiations: Dublin III will apply. We will be doing what has already put into action. The figures show that since the start of 2010, 41,000 children have found homes in this country. There is a category that the amendment of the noble Lord, Lord Dubs, is particularly concerned with: maintaining the rights of unaccompanied children. There too, the numbers have been shared by this Government. I was a Home Office Minister in the coalition Government where noble Lords sitting on the Lib Dem Benches were my partners in maintaining this policy throughout that period. It is important to understand that within this House there is some unanimity of purpose about this Act.

What is worrying to me as former member of this Government, and sitting on these Benches, is the lack of trust that noble Lords have shown in the commitments made by my successor in the Home Office, my noble friend Lady Williams of Trafford. Nobody has worked harder to convince people of the intentions of this Government. Nobody has spoken with greater authority on the subject than her. As my noble friend Lord Hamilton of Epsom said, it is distressing that this House is not prepared to believe what is said on behalf of the Government by a Minister on this issue. This is a problem that this House is going to have to come to terms with. I went to the briefing meeting in room 10A last week, as did an awful lot of people. I think that the truth of the matter is that the room was convinced of the intentions of my noble friend, and by the responses she was able to give.

This withdrawal agreement Bill is not about providing specific negotiating instructions to the Government. It is about providing the Government the authority to enter negotiations. The Government made a manifesto commitment on this matter. It may not be as specific as the noble Lord, Lord Dubs, would have liked, but its general application applies. The Government will be not be negotiating in bad faith and trying not to find a long-term solution. We all know that this area of joint activity with our European colleagues needs agreement. It needs to be understood how we are all going to deal with these difficult cases of individual children and migrant refugees in general. The noble Lord, Lord Dubs, may well be making a point but is he being effective in helping the Government achieve that objective by seeking to promote his amendment? I think not and that is why I will oppose his amendment and I urge other noble Lords to do the same.

Will the noble Lord be good enough to explain to me—who has just been listening to what has been said in this debate—why the Government put this in the Bill if it has nothing to do with what the Government should be doing in the negotiations?

My Lords, the Government are not seeking to put in this Bill instructions as to the sort of negotiations they will undertake. That is not the purpose of this Bill. The agreement that the noble Lord, Lord Dubs, forced on the Government created that situation.

My Lords, the reason why the House is so nervous is not that we in any way do not trust the word of the Minister, but because the Prime Minister has a habit of saying one thing on Europe and then doing another. It is not the Minister but the person at the top of the Government who the trust may not emanate from. Let us be clear and go through what this is about logically, as some noble Lords have done.

The first issue, following what the noble Lord, Lord Taylor, has said, is that Section 17 of the 2018 Act is an instruction to negotiate. It gives absolutely no conditions for those negotiations. It is same as Clause 37 before us now. The difference is that Clause 37 gives a two-month period before a new policy will be laid before Parliament. We have no idea what is going to be in that policy. There could be changes so that it may not be as clear, watertight and concise as what the noble Lord, Lord Dubs, sought to do with his previous amendments and what he is trying to do in this clause.

Noble Lords—particularly on the Government Benches and some on the Cross Benches—have said the Government have a good track record on this. Let us be clear. The Government have a track record of trying to stop amendments on this from the noble Lord, Lord Dubs, in 2016 and 2018. The only reason that the British Government have a good record is because the noble Lord has forced both Houses to make sure that we carry out the obligations that we are now carrying out. As the noble Lord, Lord Dubs, has said, on many occasions, Home Secretaries have pulled him in and asked him to withdraw the very obligations that the Government are now trying to claim credit for. That is why trust is not great on this issue as well. Logically, no one’s hands are going to be tied behind their backs if we take the Minister at her word. On 15 January, on day two of Committee, she said:

“Our policy on this has not changed”.—[Official Report, 15/1/20; col. 764.]

Therefore, the policy can be laid before the House now. Why the two-month wait? Is the Minister giving an absolute guarantee that not one word in the policy will change? If it has not changed, those whom we are negotiating with in Europe will have already been told exactly what the policy of the Government will be, in more detail than what the noble Lord, Lord Dubs, is trying to achieve by making sure that Clause 37 does not go through.

The real issue here is that if Section 17 of the 2018 Act was not in place the only difference is that the Government would negotiate—which the Minister has said they are going to do because they have sent a letter—but there would not be the two-month wait while policy was laid before this House, during which things could change and the guarantees in the policy could be watered down, leaving the most vulnerable children of all more vulnerable than they are now. Those of us who support the noble Lord, Lord Dubs, are doing so because of the potential for watering down the policy during the two-month delay. As I say, the trust issue is not with the Minister, but the Prime Minister says one thing about leaving the European Union to gain favour, and then when he has the chance, he changes his view.

My Lords, I will be brief but I am moved to speak on this issue, particularly as the speeches have piled up. First, though, I commend the right reverend Prelate on talking about this as a moral bell-wether. In my earlier speech on this matter, I also said that this is as much a moral and ethical issue as it is a political and legal one. I genuinely believe that. The issue of trust that we are now getting into is difficult for us, but it is not just about trust; as the noble and learned Baroness opposite and the right reverend Prelate said, it is a matter of priority and of urgency. Why do we need a two-month delay, as the noble Lord who has just spoken asked, if there is a commitment from the Government to maintain the position?

In the manifesto on which this newly elected Government went to the country, there were commitments on refugees but not specifically on child refugees, and not beyond what was set out in the 2018 Act. It seems to a number of us on these Benches, both those who have spoken and many who have not, that this is not only a moral issue but an extremely urgent one that must have priority. Those who heard the remarks made in this debate by the noble Baroness, Lady Hamwee, where she read the words of a child in a classroom in this country, will know that it is important to understand the profound sense among British people that we must do our utmost to deal properly with child refugees. I believe that there is a profound commitment to make sure that these children, who have come through some of the most difficult circumstances that can possibly be imagined and have the prospect of being reunited with members of their families—that is the group of children we are dealing with in this amendment—can look forward to a much better life. It seems to those of us on these Benches, along with the Cross Benches and I am sure among some Members opposite, that we cannot let go of this lightly. I therefore urge us all to vote for the amendment.

My Lords, to sum up briefly, the Minister will have heard the strength of feeling in this House and the state of perplexity and bewilderment at the legislative record on this: the section is in the 2018 Act and there was no provision in the first version of this Bill to delete it. Therefore, in terms of continuity, the position would point to the Government accepting the amendment from the noble Lord, Lord Dubs, which would surely be the graceful and gracious thing for the Government to do. The strength of feeling no doubt indicates to the Government that they might otherwise have to deal with a vote in this House. There is a way out for them, and I very much hope that the Minister will be able to take it.

My Lords, the debate has been eloquent and emotion has played its part. I must begin by paying yet another tribute, for the second time today, to the noble Lord, Lord Kerr, who has proved to have an expertise in the area of bafflement as much as anything else. The clever way in which he unpicked the strands from the balls of wool that had got tangled up and pulled them out for us to look at just left us totally bewildered, so that when it all settled back again we understood as little as we did before he began.

I have listened to the arguments, and the noble Lord, Lord Taylor of Holbeach, for whom I have nothing but respect, will need to listen a little harder on the nature of the lack of trust, which is dependent not on political, adverserial positions but on a genuine feeling that we are at a moment in our parliamentary history where we have lost the art of building consensus and taking an argument forward with the respect and even affection we have for each other when we are outside the debating Chamber. It seems to me that in this debate we have reached that sort of point.

It is a source of great wonderment to me that something put in an Act just 18 months ago is now not in it and that arguments are being put forward to justify taking it out. I certainly do not understand it, but it is a long time since I took my bachelor of arts degree and perhaps I am getting addled in my old age. But it is for a small group of children—children with relatives, which limits the number even further—on the part of a Government who have already done so well in the area looking after the interests of children. It is not an instruction to the Government to do this or that which we are seeking to put into this amendment. It is not about outcomes. It is to start or keep alive a process of negotiation on this issue.

The right reverend Prelate is quite right that this has a moral dimension. We must never forget that. The noble and learned Baroness, Lady Butler-Sloss, mentioning “urgency”, “two months” and all the rest of it reminds us that we have a chance here to put this into the Bill in a way that gets things started at once, for an objective which I cannot believe a single person in this House would refuse to want and desire. I do not know. I am new to this game of politics. I try my best, I really do.

The noble Baroness, Lady Hamwee, quoting the noble and learned Lord, Lord Mackay of Clashfern, emphasised that point; nobody is seeking to tell the Government what to do or what point to reach in what they do. There is a difference between outcomes and process. All we want in the Bill is that a process be entered into. Outcomes will depend on the negotiations. That is the desire here. Other people have spoken eloquently. I hope that, in a spirit of generosity, there will be no riding of high horses because “We’ve won an election”. As the noble Lord, Lord Dubs, said, it is in the school of humanity that we will be judged, not on our party, partisan positions.

The noble Baroness, Lady Williams, is another person to whom I have listened with enormous respect in the short time that I have been doing this work, and I hold her in that respect now. Yesterday, an agreement was forged via the usual channels on a stance on an issue that would arise later in the evening. During the afternoon, that stance was totally modified, and we had to take our people through the Lobbies in an entirely different way. If that can happen in an afternoon, perhaps there is some justification for trust needing to be earned.

So, the matter is before us. I am quite sure that we will be asked to vote on it, but it is a terribly serious issue about the body politic in this country. This is an admirable debate where we can learn the art of constructive engagement and putting together a better tomorrow.

My Lords, this is an important stage in the debate. With the agreement of the usual channels, we are going to put off the rest of the debate until after lunch to allow noble Lords to think about this. The Minister will wind up after lunch.

Sitting suspended.