Lord Patten of Barnes (Con)
I invite the Minister to explain to my noble friend—who I have known for years and like very much—the difference between parliamentary sovereignty and plebiscitary democracy. It is quite a fundamental difference in our constitution.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
If my noble friend will forgive me, I will concentrate on the amendments before us and leave this existential debate for my two noble friends on the Back Benches to conduct among themselves.
The approval of the UK’s final deal with the EU has already been the focus of a great deal of sustained debate during the passage of both the European Union (Notification of Withdrawal) Act and this Bill. The Government have committed to hold a vote on the final deal in Parliament as soon as possible after the negotiations have concluded. Let me say, in direct response to the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady McDonagh, that this vote will take the form of a resolution in both Houses of Parliament and will cover both the withdrawal agreement and the terms of our future relationship. The Government will not implement any parts of the withdrawal agreement until after this vote has taken place.
As we have repeatedly made clear, we fully expect, intend and will make every effort that this vote will take place before the European Parliament votes. However, I hope noble Lords will understand that we do not control the EU’s timeframe for approving the withdrawal agreement and therefore cannot make any statutory assurances where it is concerned. This would be the case with Amendment 150 tabled by the noble Baroness, Lady Hayter, Amendment 151 tabled by my noble friend Lord Cormack and Amendment 216 tabled by my noble friend Lord Hailsham.
Lord Reid of Cardowan
A much wiser and older head than me, Merlyn Rees, once told me that, when listening to a Minister’s replies, I should forget everything before the “but”; I include in that everything before the “however”. What follows the “however” gives the Government executive powers to take a course of action completely opposite to the amendments that say that a vote should be done before the European Parliament votes. Of course the Government do not control the timetable for the European Parliament, but they control the timetable for this Parliament. We are asking for the vote to be given substance and time—rather than being a theoretical meaningful vote—as well as an assurance that the decision will be taken by this Parliament before we have to sit and watch the European Parliament voting on the deal. Can the Minister address that issue and explain to us why it is impossible to do that simple thing?
Lord Callanan
In response to the noble Viscount’s final question, no, there will be no vote in national parliaments on this matter: it is a delegated function to the EU. Only a qualified majority vote in the European Council is required, and then a vote in the European Parliament. I can go no further in answer to the noble Lord, Lord Reid, than to repeat my statement that we expect and intend the vote to take place before the vote in the European Parliament.
Lord Callanan
Yes, I fear the noble Lord is wrong about that. I think he is referring to the final trade agreement, which we hope will be a mixed agreement and will therefore need approval in national parliaments. The Article 50 process does not require approval in national parliaments.
Lord Cormack
I respectfully suggest that my noble friend is wrong in saying that it is impossible to guarantee a vote in our national Parliament before one in the European Parliament. If we are taking back control, surely in this of all Bills we can give that assurance.
Lord Callanan
I can give him the assurance that we intend, we expect, we hope and we want the vote in this Parliament to take place before the European Parliament votes, but we do not know at what stage the European Parliament will vote: it may be, to quote a hypothetical circumstance, that this Parliament will be in recess and that the European Parliament will have a vote immediately thereafter. However, I do not know; I am just saying when we want it to take place and we expect and intend it to do so.
Lord Hannay of Chiswick
My Lords, the Minister is making pretty heavy weather of this. Has he not noticed that Monsieur Barnier has said that he believes the negotiations need to be completed by October, so as to give the European Parliament time for its processes, which include committee processes and which will thus have six months to take place? Instead of beating about the bush, can he not just say that we are going to do it first?
Lord Callanan
I thank the noble Lord for telling me about the processes of the European Parliament, but I was a Member of it for 15 years and I am aware of the processes very well. We have, however, made clear that it is our objective to reach an agreement with the EU by October 2018. This objective is shared by the EU and is one which we consider we are on course to deliver. We expect, therefore, that the vote will take place substantially before exit day and ahead of the deadline in Amendment 196 tabled by the noble Lord, Lord Liddle, and Amendment 213 tabled by the noble Lord, Lord Adonis. To insert statutory deadlines into this process, however, would serve no purpose except to weaken our negotiating position, because while an early deal is highly desirable we must balance that with a recognition of the need to achieve the best possible deal.
The decision to hold a referendum was put to the electorate at the 2015 general election—
Lord Adonis
My Lords, if the Minister is not prepared to give any ground on the timescale in terms of the amount of time we shall have to debate it, will he tell the Committee what he thinks is the latest possible date the Government could submit the treaty?
Lord Callanan
I do not want to get into precise timings like that: we have said that we hope to have an agreement concluded by October 2018, which accords with the position set out by Monsieur Barnier. That is the timetable that we are working to. If we achieve that timetable, there should be plenty of time for a vote in this House and in another place, followed by the vote in the European Parliament.
Lord Wallace of Saltaire (LD)
My Lords, I am a little confused. Clause 9, as amended in the Commons, refers to Parliament approving the final terms of withdrawal. If I understand the noble Lord correctly, he has suggested that there will be an interim agreement by the end of this year, before we leave, but the final agreement, about our future relationship, et cetera, will come a good deal later. Will he explain why these two are compatible?
Lord Callanan
If the noble Lord will allow me to make some progress I will come on to the issues of Clause 9 later.
The decision to hold a referendum was endorsed by Parliament, which then consented to the Government acting on the outcome of that referendum through the European Union (Notification of Withdrawal) Act. More than 80% of voters in the 2017 election supported manifestos committed to delivering on that referendum result.
I say this only to underline to noble Lords that amendments which could be perceived as a means to delay or disregard that result carry with them their own risks to people’s faith in their democracy and its institutions. Many noble Lords, including the most respected and convinced of erstwhile supporters of the UK remaining in the EU, said at Second Reading that the Bill is not the parliamentary vehicle to seek to provide for that. The Government have received a clear instruction from the British people. On a turnout higher than at any general election since 1992, 17.4 million people voted to leave the European Union—more than the 13.7 million who voted Conservative at the 2017 general election; more than the 11.3 million who voted Conservative in 2015; more even than the 13.5 million who voted Labour at the 1997 general election, which delivered the party opposite a significant majority in the other place, of which many noble Lords were distinguished members.
Lord Higgins (Con)
My noble friend speaks of a clear instruction from the British people in the referendum but the Bill which was introduced for a referendum, and then debated and voted on in this House, was very clearly for an advisory referendum. It was in no sense an instruction.
Lord Callanan
That point has been addressed in exchanges earlier. The then Government made a clear commitment, in a leaflet delivered to every household in the country, that the result of the referendum would be respected. The people voted to leave the EU and the Government have committed to deliver on their instructions. Therefore, we will not seek to remain a member of the EU, as Amendment 190 tabled by the noble Lord, Lord Wigley, seeks to achieve. I am sure he will not be surprised to hear me say this.
Lord Wigley (PC)
Before the Minister leaves that point, in the event of there being a no-deal Brexit, the Government would have to come back to Parliament to put it before MPs and this Chamber. In the event of MPs refusing to endorse that, will he confirm that the status quo ante will prevail and we would remain part of a united Europe?
Lord Callanan
No, I will not endorse that. I will come on to the circumstances in a minute.
Let me say directly to the noble Lord, Lord Adonis, that while there are many possible outcomes for our future relationship, remaining in the EU is clearly not one which can be reconciled with the decision taken in the referendum.
Lord Higgins
But there was no decision taken; it was an advisory referendum. My noble friend refers to a leaflet distributed in the course of the referendum. If so, it was totally incompatible with what this House agreed.
Lord Callanan
My noble friend and I will just have to disagree on this one.
We have also made our position clear that the notice given by the Prime Minister in accordance with Article 50, and which was approved by both Houses of Parliament, will not be revoked. It will not be extended as Amendment 199 tabled by my noble friend Lord Cormack and Amendment 216 tabled by my noble friend Lord Hailsham seek to do.
Lord Adonis
If the Minister will forgive me, he is not in any position to make that clear because that is a decision which the House of Commons will take. It is not for the Government to say that there will be no rescinding of the notice under Article 50. If the House of Commons votes to rescind the notice under Article 50, that notice will be revoked. We are a parliamentary democracy.
Lord Callanan
The Government’s position is clear that Article 50 will not be revoked. We will discuss the question—
Lord Cormack
My Lords, with everything he says my noble friend is repudiating the authority and position of Parliament, and asserting the supremacy of the Executive. That is inimical to parliamentary democracy.
Lord Callanan
I think I am asserting the supremacy of the people who voted in a referendum.
Lord Callanan
My Lords, we will discuss the appropriateness of a second referendum later today—
Lord Reid of Cardowan
The Minister has just, perhaps inadvertently, said something of profound constitutional consequence. Is he asserting from that Dispatch Box that parliamentary representative democracy is no longer sovereign if there is a plebiscite? This is an extremely important constitutional issue and he has just made that assertion. Would he like to withdraw the assertion or to reassert that parliamentary democracy is no longer sovereign?
Lord Callanan
I am asserting that Parliament voted to hold a referendum. The referendum took place, and we all know the result. We believe that that referendum should be respected. I am sorry that noble Lords do not agree with me, but that is the Government’s position.
Lord Falconer of Thoroton
Am I not right in saying that the Government have taken power to extend the exit day beyond the date in the Article 50 notice? That is contained in Clause 14(4). Why did they take that power if they were determined, as the Minister is saying, never to change the date?
Lord Callanan
We are leaving the European Union on 29 March next year in accordance with the Article 50 notification and we have made it very clear countless times. The Prime Minister has made it clear that the Article 50 notification will not be revoked.
Lord Taverne (LD)
Is the Minister not contradicting the statement by the Secretary of State for Exiting the European Union that the essence of a democracy is that it can change its mind?
Lord Callanan
Of course Parliament is allowed to change its mind. It does so on many occasions and no doubt will do so in future on other issues.
It is our view that the question of whether to leave and the process of approving how we leave have been decided. Parliament approved the referendum and has signalled its approval to every step the Government have taken since July 2016. Furthermore the people authorised the Government’s negotiating position as a result of the election last year. Lastly, we have made a solemn promise to seek approval, which I am confident will be granted, from Parliament of the outcome of those negotiations.
I stress that I understand many noble Lords’ deeply and honestly held conviction that the UK should not leave the EU. That has become very clear to me throughout the progress of the Bill, but this is a Bill to provide maximum legal certainty upon exit. I do not think it would be in the interests of either the EU or the UK to open the door to an ever-continuing negotiation process with no certainty that the UK will ever reach a new settled relationship with the EU. I do not believe that that is what the noble Lord intends, but that is what is being risked. The terms of the vote on the final deal are clear: to accept the terms of the agreement or to move forward without a deal. This is fully in line with the terms on which the European Parliament will be voting: a yes or no vote.
Amendments 196 and 213 are unnecessary because we have already made a strong commitment to hold this vote as soon as possible after the negotiations have concluded.
Lord Adonis
How does the Minister intend to prevent the House of Commons considering the option of remaining in the European Union? How does he intend procedurally to prevent it, given that he has said that that is not going to be an option?
Lord Callanan
I do not control the proceedings of the House of Commons. I can only set out the Government’s position on this matter.
The strength of that commitment and the political and public expectation that accompanies it mean that the Government could not conceivably renege on that commitment.
Lord Patten of Barnes
Perhaps I can help. This is becoming a rather complicated discussion and some of us are trying very hard to follow what the Minister is saying. Perhaps we are not being as intelligent as we should be. In the phrase “a meaningful vote”, what does the word “meaningful” mean?
Lord Callanan
We have never used the term “a meaningful vote”. We recognise clearly the desirability of maximising as much as possible the time between negotiations concluding and a deal coming into force. Knowing the terms of a deal as early as possible is good for business and the public in being able to prepare.
Baroness McIntosh of Pickering (Con)
Pursuant to the earlier question, perhaps I have completely misunderstood what the Prime Minister said, but my understanding was that she promised a meaningful vote. Therefore, it would help if the Minister in summing up the debate we have just had would say what “a meaningful vote” means.
Lord Callanan
I have said on a number of occasions that we will put the outcome of the negotiations to a vote in this House and in the other place and of course we will respect the outcome of that vote.
Lord Bilimoria
I think there is huge confusion here about the Government wanting to implement the “will of the people”. I do not think the British people who voted to leave said we should leave on any basis. This is not just about rejecting a no deal but about rejecting a bad deal. Parliament will not be doing the people a service if we just accept a bad deal when faced with the option of crashing out with no deal or accepting the Government’s deal. The public would never accept that, and we as Parliament should not accept it either.
Lord Callanan
We do not intend to put a bad deal to the vote. As we have said, we want to negotiate the best possible deal that we can. Knowing the terms of a deal as early as possible is good for business and the public, in terms of being able to prepare. It gives confidence and certainty.
Baroness Wheatcroft (Con)
When my noble friend, in summing up, clarifies his understanding of “meaningful”, will he tell the Committee whether he believes that a vote after the European Parliament has voted would constitute a meaningful vote?
Lord Callanan
Perhaps the noble Baroness was not listening to what I said earlier. We fully intend the vote to take place before the European Parliament votes.
As I have said, I remain convinced that we will achieve a deal in the interests of all the nations and people in the UK and that this Parliament will approve it. After Parliament supports the resolution to proceed with the withdrawal agreement and the terms for our future relationship, the Government will bring forward a withdrawal agreement and implementation Bill. That Bill was announced on 13 November 2017 by the Secretary of State and followed on 13 December 2017 by a Written Ministerial Statement committing the Government not to implement any parts of the withdrawal agreement until this vote on the final deal takes place. I hope it is clear how the withdrawal agreement will be implemented and that Parliament will have ample opportunity to scrutinise it before it is given effect in our law.
I reassure noble Lords that the withdrawal agreement itself will be subject to the provisions of the Constitutional Reform and Governance Act 2010 before ratification, in addition to the vote on the final deal that we have already promised and the scrutiny of the implementing legislation. There will therefore be ample opportunity to scrutinise the agreement and its implementation.
I know that many noble Lords have clear concerns about Clause 9 as it is currently drafted—I listened very carefully to the comments from the noble Lord, Lord Lisvane. The Government are listening very carefully to the debate on these concerns and we will take them away to see whether anything can be done ahead of Report to address them.
Lord Beith (LD)
What is the point of leaving in this Bill the power to make regulations which can now only be brought into effect once the withdrawal agreement Bill has been passed? Should we not just remove those provisions now and ensure that any provisions included in the withdrawal agreement Bill meet the concerns that the Minister has said he would like to meet?
Lord Callanan
If I can make a little more progress talking about Clause 9, I think the noble Lord will find that his question has been answered.
However, let me ensure that my previous statement is not taken as more significant than it is—
Lord Callanan
Everything I say is meaningful. Although we can look again at elements of the power, we will not be removing it from the Bill in its entirety, as Amendment 194, tabled by the noble Lord, Lord Adonis, who I am glad to see is still with us, would have it.
It is prudent to keep Clause 9 as part of this Bill. We do not yet know the shape or the outcome of future negotiations. It is crucial that we have the necessary legislative mechanisms available to us to fully implement the withdrawal agreement in time for exit day. There may well be a number of more technical separation issues which will need to be legislated for, depending on the shape of the final agreement. It is long established that where legislation is intended to make smaller, more detailed changes, secondary legislation can be an appropriate vehicle. It is also not uncommon for the principles of an international agreement to be implemented through secondary legislation.
Let me give an example. The Nuclear Installations (Liability for Damage) Order 2016 implements the 2004 protocol to the Convention on Third Party Liability in the Field of Nuclear Energy—a matter with which I am sure noble Lords are fully familiar.
To be clear, however, Clause 9 is not intended to implement major elements of the withdrawal agreement. I understand that this distinction might seem a little abstract so I will demonstrate with a few more illustrative examples, although with the caveat that we cannot know for certain until the withdrawal agreement has been finalised. Clause 9 may be required, for example, to legislate for the position of ongoing administrative proceedings when we leave the EU. This is a broad basket of more technical issues such as proceedings on competition and antitrust under regulation 1/2003 or procedures on the concentration of undertakings/mergers under regulation 139/2004. These are quite complex, technical issues that do not need to be put into any Bill but must be legislated for.
Another area that Clause 9 could be used for relates to the privileges and immunities afforded by the UK to the EU, its institutions, bodies and staff post exit. These are a standard feature of international law and are generally considered necessary for the proper functioning of international organisations. Privileges and immunities for the EU are currently implemented under protocol 7 of the Treaty on the Functioning of the European Union. After exit, the EU will continue to require privileges and immunities to cover any functions that it has during the implementation period or for winding down its existing operations, and our agreement on privileges and immunities will need to be implemented in domestic legislation. If noble Lords would like further detail, I encourage them to consult the Hansard record of Committee in the other place where further details were offered on potential examples.
I do not need to remind noble Lords, particularly the noble Baroness, Lady McDonagh, that the amendment to Clause 9 that was approved in the other place means that the clause can be used only subject to the prior enactment of a statute by Parliament approving the final terms of the withdrawal of the UK from the EU. That is an exceptional check on the power, and of course we stand by that.
I have been left in no doubt of the strength of feeling in the House about Clause 9. As with other contentious areas of the Bill, I look forward to meetings and discussions with noble Lords to see what can be done ahead of Report. With that in mind, I hope noble Lords will not pursue their amendments.
Viscount Waverley
The Minister referred to the CRaG procedure. He may not be aware that the House of Commons put out an Explanatory Note on many of the issues that we are discussing today. I would like to ask his opinion on a line from it:
“Either House could also use the CRAG procedure to object to ratification of the agreement, and in the case of the Commons, indefinitely block it”.
Would he care to comment?
Lord Callanan
If the noble Viscount will forgive me, I have not read the details of that. I am sure his quote is accurate but I would like to read the whole thing before I comment on it in detail.
Lord Newby (LD)
My Lords, the Minister has just said, as he has done several times in Committee, that, first, the Government reject all the amendments but, secondly, they are going to think about it. The clock is ticking and we are not now that far from Report. Saying “I’m going to think about it” may give some noble Lords false hopes that the Minister has it in mind to do something about it. I suggest that in this case, and certainly as we come to future groups, if the Minister seriously has it in mind to produce a government amendment on Report, he says so in terms. Simply saying time after time “We reject this but we’re going to think about it” does the House a disservice because, having listened to most of the Minister’s speeches on the Bill, I have the feeling that thinking about it does not appear to be a prelude in the Minister’s mind to any action whatever.
Lord Callanan
I and other Ministers have indicated in response to other groupings of amendments where we are definitely going to be bringing back further amendments on Report. However, we have also made it clear, as I hope many noble Lords in the House today will agree, that we are having further discussions with a number of people who have raised valid concerns to see how those concerns may be addressed. While on many occasions we do not want to go as far as some of the amendments, there may be some reassurances that we can give or modifications that we can suggest. I am not going to give any definite commitments at this stage—that is not how this process works—but we are looking at all the issues and, as I have said on numerous occasions, we will do what we can to take into account the concerns of the House.
Lord Hannay of Chiswick
My Lords, the Minister has got me famously confused now. He said, in a very welcome way just now, that the Government accept that the amendment voted for in the Commons—Amendment 7—provides for the outcome to be subject to a statutory procedure. A little time ago, he said that it was the Prime Minister’s intention to submit the deal to both Houses without a statutory procedure but as a simple resolution. Which comes first, and how do the two relate to each other?
Lord Callanan
There are two stages: once we have a deal, we will put its terms to both Houses, and if we get approval for that deal, we will submit the withdrawal agreement and implementation Bill to implement those agreements in statute. I am not sure what is so complicated about that.
Lord Hannay of Chiswick
So the Minister’s reading is that the Amendment 7 provision is merely synonymous with the implementing Bill?
Lord Callanan
I do not think I said that. The terms of Amendment 7 are fairly clear. That has been written into Clause 9 by another place, and we will respect that.
Lord Forsyth of Drumlean
Perhaps I was not paying enough attention, but can I ask my noble friend: if we are going to end up with primary legislation to implement the agreement, why is it necessary to have Clause 9 at all? He gave some examples of particular regulations, but I could not see the link that justified having Clause 9 itself.
Lord Callanan
There are some technical provisions that we may want to use Clause 9 to implement, subject to the provisions of Amendment 7. There is also the political imperative that the House of Commons considered this matter closely and decided to keep Clause 9 in the Bill, albeit modified. We want to respect the will of the House of Commons.
Viscount Waverley
Will the noble Lord write to me on the particular issue he raised on the CRaG procedure for the record?
Baroness Hayter of Kentish Town (Lab)
My Lords, we have to thank the Minister for his wisdom, his humour, his tolerance—but. One thing with which I agree with the Minister, on which I think I heard him right, is that he appreciates, which I have certainly felt, that there is clear support in Committee for a meaningful vote on the withdrawal deal, or indeed, on no deal. I do not know whether that will be the scorched earth, referred to by the noble Lord, Lord Lisvane, or the absence of a package, suggested by the noble Lord, Lord Wallace, but I think we know what we mean by “no deal”.
The question is: what is meaningful? If it is, as I said earlier, a mere Motion, with no statutory force, that surely is not meaningful. But it is not meaningful if it is not timely; in other words, if we do not have it early enough for it to make a difference. I think the noble Lord, Lord Wigley, asked whether it would be a case of like it or lump it. If so, I do not think that would work in either House. Indeed, I was quite concerned at one point when the Minister seemed to say that, if Parliament voted no to the deal, then we would come out without a deal. That is not what some of the amendments in this group want, and we do not want the outcome that if we vote down what there is, we will get the worst of all worlds. We want to put power back into the Commons, so if the decision is that the withdrawal deal will not do, it would be for the Commons to decide what to do about that. Also, the vote needs to be meaningful in that it should influence the choices that the Government will be making, as my noble and learned friend Lord Falconer said. That is the point. Knowing they have to come here for a deal will affect what happens in the negotiations, so the outcome will be influenced by a vote here.
It is absolutely clear from what everyone has said that it is for Parliament to endorse, or otherwise, the outcome, which is why I am not tempted by my noble friend Lord Adonis’s desire for a referendum. I remind him that it was a referendum that got us into this mess in the first place, but that is not the reason. The reason is that, like other speakers, I want to reassert parliamentary sovereignty. That is why we will try to bring back an amendment on Report that will ensure that, if Parliament gives the thumbs-down to the deal, it would be the Commons and not the Government that decides what happens next.
Baroness Smith of Basildon (Lab)
My Lords, this has been an interesting debate. I hope it has been helpful for the Minister.
I made a comment at Second Reading that in preparing for Brexit we should look at the detail—that the fine print was too important to be left to those who had no doubt—and I expressed the hope that Ministers would recognise the expertise in your Lordships’ House. Indeed, Members in the other House said exactly the same.
At Second Reading, the response of the noble Lord, Lord Callanan, expressed optimism in that regard. If ever there was a time to listen to the expertise in your Lordships’ House, it has been tonight in this debate. We have heard from a former Secretary of State, the noble Lord, Lord Hain, the noble Lord, Lord Murphy, the noble Lord, Lord Patten, with his vast experience of Northern Ireland, and the noble and right reverend Lord, Lord Eames, who made a powerful speech. We heard from my own colleagues, including my noble friends Lord Browne—he and I were Ministers together—and Lord Dubs. I feel somewhat nervous seeing my two former Secretaries of State for Northern Ireland sitting together, watching over me and looking at my back.
Noble Lords have raised pertinent issues tonight that go to the heart of what Brexit is about. The Northern Ireland Good Friday agreement was hard fought and hard won and no one in the House should doubt the importance of how well it has served us. We have had a long debate and issues have been raised tonight purely through people’s knowledge and their concern for what could happen if there is a hard border. I appreciate the points made by the Government about the protection of the Good Friday agreement. I welcome to his place the Minister who is responding tonight but at Second Reading the response of the noble Lord, Lord Callanan, did not refer once to Northern Ireland although the issue was raised several times. Clearly that was an error, a mistake, because there were a great deal of issues which had to be talked about. However, I am sure the Minister will understand the frustration at the lack of detail from the Government on what happens next.
The point was made earlier that these amendments should not be necessary. My noble friend Lord Browne of Ladyton said that we were holding the Government to account for the solemn commitment they have made and to do what they have promised to do. The Government and the noble Lord at the Dispatch Box have been clear on Northern Ireland: they support frictionless trade, they want a soft border and they support the Good Friday agreement. The noble Lord has been clear that that is the Government’s objective. What has never been clear, and has led to the debate tonight, is how that is to happen.
We heard from my noble friend Lord Hain, when he opened the debate, that there is over 300 miles of border. My noble friend Lady Kennedy said that 30,000 commuters cross the border daily—including for schools and hospital visits—over 400 commercial vehicles cross each month, and 40% of container movements to the Republic of Ireland go through Northern Ireland. There is a huge issue to address and a commitment is required—not, “We want this to happen” or “We believe this will happen”; it has to be an explanation of how we can make it happen.
My noble friend Lord Browne and the noble Baroness, Lady Suttie, referred to paragraphs 49 and 50 of the joint report produced in December, which are quite clear about why there should be no hard border, but that contradicts government commitments. The Prime Minister has referred several times to her red lines—no single market and no customs union—yet here we are talking about full regulatory alignment. The two are contradictory and that is why some of these concerns have arisen.
Most of the points have been covered in the debate and there is little of great substance that I can add, but I would like to make two points. I do not know if the Minister is aware of the follow-up letter to Karen Bradley signed by noble Lord, Lord Boswell, chairman of the House of Lords European Union Committee, on UK-Irish relations. In paragraph 52 the noble Lord accepts that,
“a degree of constructive ambiguity can be helpful during negotiations”.
He understands that, but he goes on to indicate that we need clarification from the Government of their understanding of what is involved in that December agreement. The European Union has come forward but we have not seen what the Government’s understanding is of how it will work. What does “full regulatory alignment” mean? I think I understand what it means, but the Government seem to believe something different.
The letter also refers to technology. The Government have said several times that they can deal with the border issue by using technology. There are grave doubts about that, as we have heard from other noble Lords in this debate. The letter from the EU Committee reminds the Secretary of State that,
“there is a need for realism … There is also a distinction between identifying solutions that are theoretically possible and applying them to a 300-mile border with hundreds of formal and informal crossings”—
a situation similar to that between Sweden and Norway—
“and the existence of which is politically divisive. Any physical infrastructure at the border would be politically contentious and, in the view of the PSNI, a security risk”.
In our long debate today we have not talked about the security issues, but the Minister who is to respond has to understand that unless he can provide a solution to how there will not be a hard border in Northern Ireland, there remains a security risk to those who fought the hardest to secure peace, a point made very powerfully by the noble and right reverend Lord, Lord Eames.
Finally, the ideological position on Brexit must be put to one side. In the Mansion House speech made by the Prime Minister just a couple of weeks ago, she showed that she is prepared to take what I suppose is a pragmatic eraser to some of those red lines and smudge them a bit—make them slightly pink—as she has done on the agencies. The time has come when I hope the noble Lord can give the Committee some confidence that the Government understand why these concerns have been raised. It is not good enough simply to say that this is what the Government want; they have to show the intent of how it can be achieved.
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
There is a lot to be going on with this evening. I thank all noble Lords for their wide-ranging contributions. I hope that I will be able to do justice to the amendments before us, but let me begin by making a few general observations. We have in this Chamber tonight a number of the architects of the Belfast agreement. The word “architect” is often used. Architects create edifices which we may gaze at, but in truth the noble Lords present in this Chamber were not so much architects as mechanics. They created an engine that needs to be maintained and taken care of. It cannot be left alone in perpetuity; it requires tender loving care on every occasion. That is why a number of the points which have been raised go back to the Belfast agreement.
Let me be frank: the Belfast agreement remains the cornerstone of the United Kingdom Government’s policy as they approach Brexit. Further, the Belfast agreement is enshrined in international law, so it has a basis that is broader than simply membership of the EU. A number of noble Lords have made the point that it is our membership of the EU which was a factor in the agreement, and I do not think that that logic can be faulted. Equally, however, a great responsibility now rests with each of the partners as we address the reality of Brexit. That responsibility rests equally with the Government of Ireland, the Government of the United Kingdom and the European Union. That is why when we look at the joint report which was published in December, we see that at its heart is a recognition of each of the elements that we have talked about in this debate.
The noble Lord, Lord Kerr of Kinlochard, talked about the response of the EU to that report going forward. If I were being very frank, I would express a degree of disappointment in that for one simple reason. Of the three options that were set out in that joint report, the EU lawyers and negotiators have chosen to take forward only one into the text that we are confronting today. I believe that that is unhelpful.
Lord Duncan of Springbank
Perhaps I may make some progress but I will return to the noble Lord if he will allow me. We have had a very wide-ranging discussion and we will come back to his point.
As we go forward, I want to stress again that the key thing which the Government must achieve in the negotiations is an equitable, sensible and sustainable solution. A number of noble Lords have referred to certain elements which must and will appear in subsequent Bills, whether they are questions about agriculture, fisheries, broader trade or electricity. All these will fit in sensibly to those parts and the withdrawal agreement and implementation Bill will afford an opportunity for noble Lords to address all these particular points. We as a Government are determined to ensure that all the commitments on Northern Ireland and the Republic of Ireland set out in the joint report are turned into legally binding text—not just one of them. Each of them has to be a component part. All the parties involved must recognise that, to ensure that it is indeed the case. Further, we have been clear that in all circumstances we will protect the UK internal market. The noble Lord, Lord Empey, was very persuasive in the way that he set out the reality of the market as it affects the Province of Northern Ireland, and we cannot lose sight of that. Nor can we see a border suddenly appear down the middle of the Celtic or Irish Sea; that in itself would be wrong. We therefore need to find, along with the EU, an approach that works.
I turn now to the remarks made by the noble Baroness, Lady Kennedy of The Shaws. In some ways the points I am going to make echo those of the noble Lord, Lord Empey, because in certain respects the key thing will be for the two respective Governments to ensure that they create a situation in which there is a disincentive to abuse the border. That will be the first step. On the points raised by the noble Baroness about the physicality of checks and the reality of what they might look like, I wanted to be very clear about what I would say in my response, so I scribbled a note for my officials in the Box in order that I would not in any way stray on to thin ice. To be clear: there will be no impediment at the land border to the movement of people—no checks and no profiling, full stop. That is the ambition and the policy of the United Kingdom Government.
Going forward from that, I shall address the points made by the noble Baroness, Lady Smith of Basildon. She raised the question of regulatory alignment, which was covered in the joint report. It is important to recognise that alignment is about pursuing the same objectives. As my right honourable friend the Prime Minister stated in her Florence speech, it is about achieving the same goals by the same means or achieving the same goals by different means. In many respects, as a former Member of the European Parliament, I am familiar with that approach. It is like the difference between producing a regulation and producing a directive. A directive sets out clearly what the ambition should be but gives greater latitude to those to reach the particular ambition. A regulation does none of that. It is set in stone and in law and it must be followed. The noble Baroness will recognise that in the negotiations it will be necessary for both sides to achieve an understanding of what that will mean. That is because, in truth, it will affect both sides and it will disproportionately affect Ireland over the United Kingdom. That is why the negotiations will be conducted on a very sensitive and sensible footing. I do not impute the sinister motives raised earlier by the noble Lord, Lord Liddle.
Lord Duncan of Springbank
I should like to make some progress, so I hope that noble Lords will forgive me.
Lord Duncan of Springbank
We have been here for some time and there has been a wide-ranging discussion. I hope that I will be forgiven if I seek to make a little progress.
Lord Duncan of Springbank
Well, I will make progress without the forgiveness of noble Lords on this occasion.
On Amendment 187A in the name of the noble Baroness, Lady Doocey, and Amendment 215 in the name of the noble Lord, Lord Browne of Ladyton, the joint report makes clear the Government’s commitment to avoiding a hard border, including any physical infrastructure or related checks and controls—a point made on more than one occasion by my right honourable friend the Prime Minister, most recently in her speech on 2 March. That is the policy of Her Majesty’s Government. We have put it before noble Lords as a statement of the policy; the interpretation of it must rest in noble Lords’ hands, but that is the policy we put forward.
Amendment 198 was introduced by the noble Lord, Lord Hain, in a very expansive and careful manner; I believe the entire House appreciates that. The Government made clear during the Bill’s passage in the other place that we will include an appropriate provision in the withdrawal agreement and implementation Bill iterating each element of the agreement we reach, including the protections set out in the joint report. Passage of the implementation Bill will provide an opportunity for noble Lords to scrutinise the specific provisions envisaged in today’s amendment as they appear in that Bill. There will be an opportunity at length, I hope, to address these point specifically.
I am conscious that the issues raised by the noble Baroness, Lady Suttie, require some attention. As I say that, I am conscious that the important issue she raised is about how we ensure that the children of Northern Ireland—indeed, of the entire United Kingdom—understand what we do here, not just in your Lordships’ House but in the other place too. To some degree, explaining what we do and why we are trying to do it is incumbent on each of us. The key thing will be ensuring that children can be part of that ongoing discussion and dialogue and see that making laws is not an easy process, responding to democratic challenges is not simple and sometimes there will be positions that are challenging to hear but none the less must be taken forward. A number of noble Lords have raised the issue again of the nature in which the Brexit vote took place.
I listened to the remarks of the noble and right reverend Lord, Lord Eames, who can often calm the House with his careful and considerate remarks. He captured that very well when he reminded us of the challenges we face in trying to move this forward. We need to be careful because a generation awaits the outcome of what we do here today and what the Government do in ongoing negotiations. There is no doubt about that. That is why, as I have said on more than one occasion in your Lordships’ House, the key must always be to secure an Executive in Northern Ireland who will be part of that process. Those voices are missed from the processes we are taking forward at this time.
As we give consideration to the appropriateness of the amendments, I am also aware that there will be opportunities for certain aspects of them to be addressed more head-on as we move through the negotiations. In putting these points before noble Lords, I hope I appear to have been, in some respects, more focused on the amendments than the broader discussion, but I do not doubt that there will be opportunities for further broad discussion. On this occasion, I hope that the noble Baroness will find it appropriate to withdraw her amendment.
Lord Liddle
Before the Minister sits down, I think he will allow me to make my point now. I want to say how much I welcome his tone and the spirit in which he has approached the House on this. I think he is a very constructive Member of the Front Bench opposite. In that context, I want to raise my concerns.
I am on the EU Select Committee. We have taken a lot of interest in the Irish question and produced reports. I am very concerned by the fact that the Government produced their proposals on a customs partnership last August and made a commitment in the December consensus, but there is absolutely no evidence that the Government have come forward with any alternative proposals on the border to those of the Commission. In circumstances where they have had all this time and no alternative proposal has been produced, a reasonable person can conclude only that the Government have concluded that there is no alternative to remaining in the customs union and the only way they have of trying to spike being cornered in this way is to try to get the EU 26 to tell the Irish that they have to back off a bit. Is that sinister? After all this delay and the lack of information on what the Government are doing about the border, it is not sinister—it is a reasonable conclusion.
Lord Duncan of Springbank
I thank the noble Lord for his final comments and I am sorry if I appeared to lack politeness in not allowing them earlier.
There are negotiations that are yet to come. I do not believe it is useful in negotiations to place all your cards face up. In concluding, if I may, I will cite the words of the great country and western singer Kenny Rogers. In negotiations,
“You’ve got to know when to hold ’em, know when to fold ’em,
Know when to walk away, know when to run”.
Lord Hain
I welcome the noble Lord, Lord Duncan, to his post as a Minister and commend the empathy he has shown in responding to the debate, which I think the whole House welcomes.
I will not respond to the whole debate—the hour is too late—except to commend the marvellous, passionate eloquence of the noble and right reverend Lord, Lord Eames. He would be able to get me to follow him on any theological journey, which is asking a lot of me. However, I regret that the Minister has not really responded to the questions put to him. For example, the Brexit Secretary said recently that there would be no problem monitoring imports and exports between Northern Ireland and Ireland after Brexit and there would be no need for a hard border because we already do this for VAT purposes. But we can do it for VAT purposes now only because we are in the European Union’s VAT Information Exchange System—VIES. Outside the EU, we are out of that tracking system. Then, on Sunday, the Chancellor admitted that there was not an example in the world of the kind of technological open border alluded to by the Minister. Who believes for a minute that it can be done, apart from the Foreign Secretary—who thinks that South Armagh and Louth are the same as Camden and Westminster, except with more Guinness?
The Prime Minister insists that Brexit means the UK leaving the single market and the customs union, which I do not accept for a moment. We can Brexit and stay in the single market and the customs union; other countries are outside the European Union but are in either the customs union or the single market. But if she were right, the UK Government in turn would be obliged by WTO rules to enforce hard border arrangements on the island of Ireland because of the change in their relationship with the EU. Therefore, to keep the border open as it is today, there is no alternative to Northern Ireland—and, by implication, the UK—remaining in both the single market and the customs union. I regret that the Minister, despite his empathy, has not really answered that point. I will not press my amendment.
Lord Adonis
On the subject of the House resuming, we have now been going for nine and a half hours. We have a very important Statement coming up, on relations with Russia, which many noble Lords who have been party to the debate for the past nine and a half hours wish to stay for. I have just been told that the Government are proposing that we do not have any break at all after the Statement, before we resume Committee stage. I see the Leader of the House is in her place. This is totally unacceptable behaviour on the Government’s part. Does she expect us to remain in session for 12 or 15 hours, conducting the business of the House, with no break whatsoever? The way in which the Government are handling Committee stage is simply unacceptable. If the Government do not give us a break, I intend to move a further adjournment when the Government attempt to resume Committee stage in, I assume, 40 minutes’ time.
Lord Young of Cookham (Con)
My Lords, there will be an opportunity for those who have been taking an interest in Committee to have a break of 40 minutes while we take the Statement. The Government are anxious to make progress with the Bill.
Lord Adonis
The Statement is on one of the most important issues facing the country. Is the noble Lord telling us that we have to choose between having a break and participating in the Statement on Russia? That is simply unacceptable. I do not think that the usual channels should have agreed it, if it has been agreed. It seems to me to be a straightforwardly unacceptable practice.