My Lords, I will argue that Clause 37 should not stand part of this Bill. I think I have had three sets of discussions with Ministers about this, for which I am enormously grateful: once on the phone and twice in meetings face to face. I am grateful for the time they have given me. Indeed, I was quite flattered on one occasion that there were three Ministers and seven officials—I thought the odds were just about even on that one. At any rate, I have had plenty of chances to make my points.
Regarding the Salisbury convention, as it was mentioned in the last discussion, it is fairly clear to me that it would allow us to move this amendment—to do what we like—on unaccompanied child refugees, because they were not given any mention in the Conservative Party manifesto. Indeed, it was quite a shock to many of us when we saw the Bill that Clause 37 was there at all, as we had had no previous warning.
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Members of this House will be fully aware, and there is no need for me to spell it out in too much detail, of the appalling conditions of children in Calais, in what was formerly the Jungle, or on the Greek islands. Their conditions are desperate. These young people are vulnerable to criminality, prostitution and trafficking; they are in a terrible plight. I have never argued that Britain can take them all. Of course not. All I have argued is that we should take our share of responsibility along with other countries. However, we have a specific responsibility where the children have family here. Clearly, we should support the right to family reunion.
Let me explain briefly how we have got to this position, although most Members of the House will be aware of it. In the 2018 Bill, this House passed an amendment to the effect that family reunion should be retained even after we have left the EU—a right that was established within the EU under the Dublin treaty. There was a big vote in this House and it was passed. When the proposition got to the Commons, the Government accepted it and it became law in the 2018 Act. There it stands, and would have stood until we came to this provision in the Bill.
The Government have given a number of reasons why Clause 37 should stand. I am bound to say, without making too much of a debating point, that when someone gives four or five different reasons for doing something, it weakens the argument. One always tends to think that too many excuses do not add up to a more powerful case. As I shall go on to argue, I have come across at least five excuses or reasons for Clause 37. One is that Parliament should not bind the Executive; another that the 2018 Act was not right for it anyway and that therefore this is not the right Bill; another that there is no need for legislation anyway, as it can all be done via Immigration Rules; and it is best to avoid the potential for legal challenges. There are no doubt others, but I am afraid that, together, I do not find them all that convincing.
One of the alarming consequences of this provision is that, as it is now, there are young people in Calais who have been sent the pretty dangerous signal that Britain does not want them to come here and join their families. The Minister will deny this, but, admit it, if Britain does not want it, the awful thing is that more young people will take the illegal route on the back of lorries to come to Britain.
The Minister will also talk about the thousands of children that we have taken. My understanding is that 90% of the figures that the Minister will give us are children who have come to Britain illegally because there was no legal safe path. It is clear that, if we wanted to rejoin our families, as any of us would in that position, and there was no legal path, we would seek any means of doing it. By having this provision here we are simply encouraging the traffickers and causing alarm to those who might benefit from the family reunion policy. Family reunion is one of the few safe legal routes for unaccompanied children in Europe to find safety. That is why there is a provision in the Dublin treaty. As I said, the Government will have a figure of how many have come since 2010—I think it is about 35,000; it may be more—and our view is that
probably 90% of them have reached Britain illegally. We still look after them of course, because we are that sort of country.
The Government have said that there is no need at all for legislation and that therefore we do not need the provisions in the 2018 Act. First of all, the only way in which we could argue the case for family reunion continuing after we have left the EU is by moving an amendment—what else can we do? We can implore the Government to do it, but it seems to me that the right thing to do was to move the amendment. It worked, because the Government accepted it at the other end. The Government will now say, “Ah, but an immigration Bill is on its way, and that is the right place to put it”. I only quote what Ministers have been saying. The immigration Bill may or may not be the right place to put it, but we have not got it yet. We do not know whether any of this will be in the scope of that Bill. So arguing that we should accept Clause 37 because there is another way of doing it seems slightly doubtful.
Further, at one of our meetings, the Immigration Minister said, “We don’t need this in legislation anyway. It should be done under the Immigration Rules”. First, we in Opposition, as individual Members of the House, have no influence on the Immigration Rules. We must accept them as they are when they come forward. We cannot move an amendment to the Immigration Rules. As I understand it, that is not how Parliament can deal with them. So our hands are tied. In any case, the Immigration Rules cannot cover our relationship with other countries for the sake of getting the children over here. Again, that is not the way forward.
There was an awkward moment when the Minister said that the Government have given a verbal undertaking and asked whether I do not trust them. I find that difficult. Of course I trust individual Ministers who give me their word, but I must say two things. First, they may be promoted out of their jobs next month and may not be there to answer on this issue; they may be answering on other things. I hope that they are all promoted, but there is no assurance that the people who give me their word today will be the people who have to answer on this later on.
Also, I am not talking about individual Ministers, but on certain elements concerning refugee children the Government have not fulfilled their trust. I hate to go over old arguments, but my amendment that sought for unaccompanied children with no family here to come to Britain—it became part of the 2016 Act—originally contained the figure of 3,000. It was dropped because of financial privilege in the House of Commons but, nevertheless, I was assured by the then Immigration Minister that the Government would stick by the letter and spirit of my amendment. Then the Government said, “We can’t have more than 480, because local authorities don’t have any more places”—a fact we have challenged on many occasions. To put it simply, to believe the Government all the time is not too easy. Although I trust implicitly the word of the three Ministers I spoke to, I had to say to them, “I don’t trust the Government fully on this.”
Another argument is quite dismaying: when the Government say that they want flexibility in negotiations, I still find it difficult to accept that they will use
unaccompanied child refugees as bargaining chips. The Government will say, “Not so”, but I quote from a letter that the noble Baroness, Lady Williams, sent to many of us about a week ago:
“The new clause 37 in the EU (Withdrawal Agreement) Bill is primarily about clarifying the role of Government and Parliament in negotiations. It is right that the statutory obligation to negotiate previously contained in section 17 of the Withdrawal Act is removed and not retained by this amendment, so that the traditional division between Government and Parliament be restored, and the negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas.”
It seems that the Government want to use unaccompanied child refugees for the purpose of negotiation. The Government may have meant a more limited form of negotiation—that is, to say that they will negotiate on behalf of child refugees with family here in the same way that EU countries could then agree to take any children here who have family elsewhere. If that is it, okay, but that is not what the letter says. Talking about “full flexibility” and
“an appropriate manner across all policy areas”
is a pretty wide statement. If the Government withdraw that, I will understand, but I do not like the idea of children being used as bargaining chips.
Of course, at Second Reading, the noble Lord, Lord Callanan, talked about removing the obligation, to avoid legal challenges. The Government worrying about legal challenges suggests that they are doubtful about whether they will meet their legal obligations.
I mention bargaining chips but there is another point here, which we discussed in the previous debate. If the Government do not want to be tied by legislation in negotiations, which seems to be the argument against accepting Clause 37, how do we have Clause 33, which we have just debated, on a prohibition on extending the implementation period? I do not argue with its merits, which have just been debated, but it seems that the Government are saying, “Yes, Parliament can, through this legislation, tie the hands of the Government”, yet they should not be doing so in relation to unaccompanied child refugees. It does not seem to stand up.
Further, the Government have said that they have already approached the EU on this matter. So they have seemingly started negotiations. I understand that a letter went to the EU but nothing has come back. I thought that the negotiations were not due to start until after the end of this month. Well, if they want to start negotiating, fine, but that seems to be the position.
I find myself in a difficulty here because, for all the words they utter about supporting child refugees, the Government are turning their back on them. Clause 37 has attracted a lot of publicity, mainly on the part of people who are concerned about what this means and why the Government are being negative about child refugees. I am sure that individual Ministers do not want to be; the provision is indeed very limited. At a peek, it simply says that if a child in an EU country—I am talking mainly about refugees in northern France and in Greece, particularly on the Greek islands—has relatives here, surely it is right that we should make provision for them to join their relatives. Surely that is the very minimum that a humanitarian country can say.
What is better than family reunion for child refugees who otherwise must stay in appalling conditions or make their way across the channel?
Finally, I believe that the British public are essentially humanitarian in their instincts. I believe that, when the argument is put, they support the idea that we should be generous as regards child refugees—as I say, not taking them all, but taking our share of responsibility, particularly where family reunion is concerned. I believe that a measure such as the one I am putting forward will have the widespread support of the British people, which is why I am happy that the amendment is here. I hope that the Government will find the ability to support it, even at this late hour.