Monday 30th April 2018
(5 years, 12 months ago)
Lords ChamberEuropean Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Amendment Paper: HL Bill 79-R-V Fifth marshalled list for Report (PDF, 409KB) - (30 Apr 2018)
16:41 - Division on Amendment 49 - Ayes: 335 / Noes: 244 - Amendment 49 agreed.
18:34 - Division on Amendment 50 - Ayes: 202 / Noes: 260 - Amendment 50 disagreed.
19:26 - Division on Amendment 51 - Ayes: 270 / Noes: 233 - Amendment 51 agreed.
22:08 - Division on Amendment 59 - Ayes: 205 / Noes: 181 - Amendment 59 agreed.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, first, I thank all the contributors to this debate. It is right that we have taken the time to discuss it at length, because this amendment has potentially serious implications for delivering a successful Brexit. Of course, I understand why this amendment might look notionally appealing, at least—it triggers a greater role for Parliament should any of the deadlines set by the amendment pass without their terms being met—but let me be very clear; this is not an innocuous, measured amendment. It contains a number of constitutional, practical, legal and political difficulties, all of which we should seek to avoid if we are to leave the EU with the best deal possible, which is what the Government want to achieve. Indeed, this amendment would create a profound constitutional shift in terms of which branch of the state holds the prerogative to act in the international sphere, a point so well made by my noble friends Lord Lamont and Lord Howard and by the noble Lord, Lord Howarth, from the Labour Benches.
I do not suppose that those who are proposing this amendment are making this suggestion lightly, but I cannot support such a move, as I do not believe that it is in the best interests of the country to redefine the nature of our democracy in this way. It is a well-established feature of our constitution that the Executive represent the country in international diplomacy, and this constitutional arrangement exists for very good practical reasons. In any negotiation, there are judgments to be made as to what can reasonably be achieved. Those judgments can be made only by those engaged on the detail. It would be impossible for negotiators to demonstrate the flexibility necessary for an effective negotiation if they are stripped of their authority to make decisions. That will do nothing but guarantee a bad deal for the UK, which is something I hope we all wish to avoid. If the UK is to be a trusted and effective negotiator, with the EU or anybody else, the Executive branch must be competent to negotiate, just as they are competent to act on their own judgment in other areas of international relations. I speak in strong terms, because I want to demonstrate the seriousness with which the Government take this amendment, its implications and the precedent it will set.
The drafting of the amendment itself is of further concern. It states that a draft of the withdrawal agreement must be approved by the Commons before it can be concluded, but it is not clear what “conclude” means in this context. This may seem a lesser point but noble Lords will understand that we need legal certainty to ensure that the vote occurs at the right time in relation to the process of withdrawing from the EU. We would not want to end up in a perverse situation in which a vote must be offered while negotiations are ongoing, for instance. The vote must happen once the final text has been agreed. Until that point, there would be nothing for Parliament to vote upon, given that ultimately, of course, nothing is agreed until everything is agreed.
Lord Hannay of Chiswick
My Lords, I ask the noble Lord to be careful. He is a Member of the European Parliament and knows perfectly well what “conclude” means: it is the moment at which the two parties to an international agreement, having fulfilled all their constitutional requirements, notify one another that the thing can be brought into effect. There is no doubt about that.
Lord Callanan
I was a Member of the European Parliament, but I also know that the vote of the European Parliament is in effect a take-it-or-leave-it vote. They do not seek to bind the hands of the Commission negotiators either.
I also question the implications of this amendment on the public’s confidence in our democratic institutions. The scope of proposed new subsection (5) is extremely broad, giving Parliament the power to direct the Government on anything in relation to negotiations: casting back to last week’s debate, it does not even add an “appropriate” or “necessary” restriction. That means directions do not have to be just about negotiating tactics or objectives but could feasibly encompass delaying or thwarting our exit completely, which I believe is the motivation of many of the supporters of this amendment. We should think very carefully about how that could be perceived by the electorate. Such a situation would not be compatible with either the result of the referendum nor the commitments given by many parliamentarians to respect the result. I agree with my noble friend Lord Lamont that this amendment would set a range of arbitrary deadlines and milestones after which Parliament may give binding directions to the Government, up to and including an attempt to overturn the referendum result itself.
Does this give the Government the strongest possible hand in negotiating a good deal? I am afraid that it does not—in fact, the opposite: it would create a perverse negotiating incentive for the EU to string out the negotiations for as long as possible. It is not in the UK’s interest to hand the EU negotiators a ticking clock and the hope that the more they delay, the more they can undermine the position of the UK Government and create damaging uncertainty and confusion. I agree with my noble friends Lord Blackwell and Lord King, who made precisely this point. The amendment would bolster those who wish not to secure the best deal with the EU but rather to frustrate Brexit altogether—a point that was well made by my noble friend Lord Howard.
However, I do not wish my response to be misinterpreted. I do not make these arguments because I think that the Government are somehow not accountable to Parliament. Of course we are. We have made a number of assurances on this matter. For example, there are some who have argued that this amendment is necessary to ensure that there is a vote on the final deal after the negotiations have concluded. I disagree. As my noble friend Lord Dobbs observed, our commitment to that is very clear and is in the best traditions of Parliament. It was made at the Dispatch Box and confirmed in a Written Ministerial Statement and has been repeated many times since.
I will make that commitment once again: the Government will bring forward a Motion in both Houses of Parliament on the withdrawal agreement and the terms of our future relationship as soon as possible after the negotiations have concluded. In reply to the noble Viscount, Lord Waverley, this vote will cover both the withdrawal agreement and the terms of our future relationship, but we have not settled on the precise wording.
Lord Wallace of Saltaire
Will the Government confirm also that that Motion will be amendable in both Houses?
Lord Callanan
I am not going to dictate what Parliament might want to do with that Motion or any other. Members will be free to table amendments to the withdrawal agreement and implementation Bill.
Baroness Hayter of Kentish Town
Will the Minister answer the other question: will it be binding on the Government?
Lord Callanan
Of course it will be binding on the Government. If Parliament rejects the deal we have negotiated, of course it cannot be implemented.
Lord Butler of Brockwell (CB)
I ask the Minister to clarify one other point, which we did clarify in Committee: if Parliament rejects this agreement, is the only alternative that the Government are offering leaving with no agreement at all?
Lord Callanan
If Parliament rejects the agreement, there is nothing for us to legislate further on. It has been rejected. The Article 50 process that Parliament voted for will then kick in: we will leave on 29 March 2019. I repeat that we expect and intend this vote to occur before the European Parliament votes on the deal. If Parliament supports that Motion, we will bring forward the withdrawal agreement and implementation Bill—a piece of primary legislation to give the withdrawal agreement domestic legal effect. Of course, that will be amendable. This is in addition to the ratification process that is a requirement under the Constitutional Reform and Governance Act 2010.
Additionally, the Government will introduce further legislation where it is needed to implement the terms of the future relationship into UK law, providing yet more opportunities for further and proper parliamentary scrutiny.
Baroness Royall of Blaisdon (Lab)
Returning to the point made by the noble Lord, Lord Wallace, I thought I heard David Davis suggest in a Select Committee the other day with regard to the meaningful vote in the House of Commons that the resolution might be amendable. I would be grateful for the Minister’s comments.
Lord Callanan
I have not seen David Davis’s comments but I am sure what he said was true and appropriate.
This is in line with our belief that primary legislation is the appropriate vehicle for major policy changes, as is evidenced by the fact that we have already introduced Bills on sanctions, customs, trade, nuclear safeguards and road haulage.
These are serious commitments. As recently as last week, the Secretary of State for Exiting the European Union took detailed questions on the vote on the final deal at the Exiting the European Union Select Committee. He said:
“The Government is unlikely to put a vote to the House that it does not intend to take properly seriously”.
Perhaps that answers the noble Baroness’s question. To discount these assurances is to go against the convention that assurances to Parliament can be relied upon.
Finally, in addition to the problems and complexities I have outlined, the amendment is unnecessary because it is a simple legal fact that, following the amendment made to Clause 9 in the other place, there is no mechanism by which the Government can give the full final withdrawal agreement domestic legal effect without introducing primary legislation.
To summarise, whether intended or not, the drafting of this amendment is problematic. Some of the policy choices in it need to be rethought. Ultimately, large parts of it are simply not fit for purpose. While I suspect that I may not be successful, I strongly urge noble Lords to think again about this amendment.
Baroness Hayter of Kentish Town
It may or may not be, but that will be an issue for then. The issue for now, surely, is the negotiations that are taking place and the maximum input and effect that we can have on them.
We need to use every bit of our persuasive powers to change the objectives that the Government seem to have set their red lines on. Not everyone will agree with me on that, but that is where the public debate should be at the moment. I have heard the arguments for a referendum. This is not the time to get the public debate back on to that rather than on the subject of the negotiations. I urge that we abstain on this amendment.
Lord Callanan
My Lords, I do not know if the noble Countess, Lady Mar, is in her place but I note that the Companion to the Standing Orders makes it clear that:
“Arguments fully deployed … in Committee of the whole House … should not be repeated at length on report”.
I therefore face a challenge today, as did my noble friend Lord Bridges during the passage of the European Union (Notification of Withdrawal) Bill, because we seem to have heard it all before. As he said then and I have said and the Prime Minister has said, our position remains unchanged from the time of the referendum that we will respect that result.
When voters walked into the polling booth on 23 June 2016, they were asked:
“Should the United Kingdom remain a member of the European Union or leave the European Union?”.
This question was put to the public as a result of an Act of Parliament passed by both Houses. The question was not, “Should the United Kingdom negotiate to leave the EU and put the terms of that departure to a further referendum?”—a point that was well made in the excellent speeches of my noble friend Lord Faulks and the noble Lord, Lord Grocott, on the Labour Benches.
Some noble Lords—possibly the Liberal Democrats—may wish that that had been the case, but it was not. The public, in the largest democratic exercise ever conducted in the United Kingdom, voted on that simple question and that simple question alone—a point made well by my noble friend Lord Shinkwin. Both sides in the referendum campaign pledged to respect the result; once the outcome of the vote was clear, that meant to leave the European Union. The public voted to leave and they expect the Government to deliver on that, not try to judge what they may have wished the question was. This promise was repeated in last year’s general election in the manifestos of parties commanding more than 80% of the vote and to which more than half the noble Lords in this House are affiliated. It is on the basis of that commitment that we are here today: the Bill is a necessary component of delivering a successful Brexit. Fundamentally, it is about providing legal certainty, for businesses here and abroad, and for citizens in both the UK and EU—which was also a point well made by my noble friend Lord Faulks.
How would the amendment fit in with that purpose? Inserting a requirement for a second referendum would have exactly the opposite effect. This House will be all too aware that a second referendum would require a further Act of Parliament. What would that process look like? What would the question be? What conditions would be attached? Would there be provision for a further referendum if the Liberal Democrats still did not like the answer? How long would it take to get the referendum legislation through the House and what would happen to business, industry and citizens in the meantime?
Furthermore, while we in this House, and in the other place, debate these issues, businesses and individuals will suffer from the uncertainty that it will bring, when what they really want is a continuation of the certainty provided by our successes in the negotiations so far. There would be legal challenges, I am sure, and perhaps clamour for a third referendum, maybe even a fourth—points well made by the noble Lord, Lord Howarth, and my noble friend Lord Dobbs. If we commit to continually looking over our shoulder, to holding a second referendum, we cannot be a strong or reliable partner in the negotiations.
Lord Purvis of Tweed (LD)
The Minister is making his case by asking for clarification on what the question would be for ratifying the agreement. I ask the Government, however, for the same clarity: what will the question be in the Government’s Motion on a meaningful vote in the House of Commons?
Lord Callanan
I outlined what the Motion would be last time: it would be to accept the deal or not to accept the deal. No simpler question can be asked.
I am grateful to noble Lords for allowing me to present the clear government position again. I ask the noble Lord, possibly without much hint of success, to withdraw his amendment. He will not be surprised to know that this is not a subject on which we will be reflecting further before Third Reading.
Baroness Hayter of Kentish Town
My Lords, in one way, it is difficult to imagine a more pertinent week for this amendment to arrive in this House. It is true that perhaps it would have been better if we had included it in the Article 50 Bill: if when, as we authorised the Government to fire the starting gun on our departure from the EU, we had laid down at that stage the requirement for the negotiating mandate which would have set out our future relationship with the EU and asked for it to be approved by Parliament.
As it turns out, that would have been good for the Government as well as for the country, as it would have forced the Prime Minister at that stage to fashion a mandate to find favour with Parliament: avoiding a further year of disputes, lobbying and, dare I say, manoeuvring within her Cabinet. Indeed, the Government’s dithering and internal party arguments have held up parliamentary work on, for example, the Trade Bill, with 12 wasted weeks’ delay on a crucial Commons vote—the equivalent of a 10th of the time allocated for the Article 50 negotiations. Such uncertainty has left the EU scratching its head as to what exactly the UK wants.
It must also drain the Prime Minister’s time and energy as she seeks to reconcile the irreconcilable within her party rather than putting the country’s interests first. The prime, perhaps the central, job of any Prime Minister is to defend and promote her country’s interests. That is what she should be doing, rather than acting as a nursery teacher controlling unruly youngsters.
That behaviour rolls on. On the one side, she is under huge pressure from within her Cabinet to abandon even consideration of a customs partnership, with, we read, senior Brexiteers “preparing for a showdown” at this week’s Brexit sub-committee. Incidentally, the showdown is in part led by Liam Fox who, in 2012, called for a new relationship with the EU based on,
“an economic partnership involving a customs union and a single market in goods and services”.
At the same time, David Davis was saying that his preference was to remain in the customs union. So their former selves were looking towards that, and your Lordships’ House, by its view on the customs union, has expressed a fear about a physical and regulatory break from our largest trading partner.
We also hear that from businesses, trade unions, environmentalists, those speaking about Northern Ireland and, possibly, from a majority in the House of Commons, where, in due course, there will have to be a crunch vote on the shape of the customs union relationship, in particular. The Prime Minister will not be able to postpone that indefinitely. As the saying goes, “You can run, but you can’t hide”. Part of the reason that that is happening now is because we did not have parliamentary approval for the negotiating mandate at the start of the process.
The amendment demands that the articulation of our future relationship—what the Government want to achieve from the negotiations—should be spelled out and put to Parliament. Perhaps the noble Lord, Lord Hamilton of Epsom, is right in what he says about what that will spell out and what the mandate would include, but why not have it endorsed by Parliament?
We support the amendment, which would ensure that that negotiating mandate, which would cover trade and our future relationship with the EU, is approved not just by what is a rather divided Cabinet at the moment, but by Parliament, which is where the decision should lie.
Lord Callanan
My Lords, I begin by making it clear that Parliament has a critical role in scrutinising the Government’s negotiating position. It is our responsibility as a Government to provide both Houses with ample opportunities for scrutinising both the approach we are taking to exiting the EU and any implementing legislation—and we are doing so.
The Secretary of State for Exiting the EU has provided an Oral Statement to the House after every negotiation round. He has provided evidence to the Select Committee on Exiting the EU five times, and has appeared before the Lords EU Committee four times. On 29 occasions to date, DExEU Ministers have given evidence to a wide range of committees, from Environmental Audit to Science and Technology. As my noble friend Lord Hamilton observed, the Prime Minister has laid out her intentions for the future economic and security relationship between the UK and the EU in several speeches, most recently in those made in Munich and in London’s Mansion House. Her intentions were also made clear in the seven future partnership papers, where the Government set out their negotiating objectives across a number of areas, including customs, science and innovation. Government Ministers have made a series of speeches laying out their intent for various aspects of the future relationship between the EU and the UK.
The scrutiny received during these parliamentary appearances, and in the multitude of reports from the committees of this House and the other place, have been of great value, and have done much to help inform the Government’s work so far. There has also been a wide range of engagement activity by government with key stakeholders across business, civil society and other interested groups. While there are some who think that Parliament should have a greater role in setting the terms of our negotiations, we simply cannot hold up the already tight negotiating timeline by providing for a further approval process prior to negotiations ending. It must be for the Government, not Parliament, to set our goals for the negotiations on the UK’s exit from the EU, and to conduct them.
As I said in my response to the first amendment that we considered today, the Government have been clear from the start that Parliament will get a vote on the final deal, when Parliament will have the final say on the withdrawal agreement and terms for our future relationship, as soon as possible after the negotiations have concluded. Only if Parliament supports that Motion will the Government bring forward the withdrawal agreement and implementation Bill to give the withdrawal agreement domestic legal effect. The Government will then introduce further legislation where it is needed to implement the terms of the future relationship in UK law, providing yet further opportunities for proper parliamentary scrutiny.
Debates in this place and the work of the committees of both Houses represent valuable forums and opportunities for parliamentary scrutiny, and we have used Parliament’s input to shape our approach to negotiations so far. Indeed, I conclude by quoting some wise words from our own House’s EU Committee’s fourth report of 2016-17, titled Brexit: Parliamentary Scrutiny:
“Parliament should not seek to micromanage the negotiations. The Government will conduct the negotiations on behalf of the United Kingdom, and, like any negotiator, it will need room to manoeuvre if it is to secure a good outcome”.
My noble friend Lord Boswell will no doubt not let me ignore the fact that the report goes on to call for the avoidance of “accountability after the fact”, but I hope that the House will agree that the right response is not to go to the extremes of micromanagement by Parliament. I hope, therefore, that the noble Lord feels able to withdraw his amendment tonight.
Lord Monks
My Lords, I thank all those who took part in this debate, which has continued the theme of this afternoon and early evening about the relationship of the Executive to the legislature. This amendment goes to the heart of that relationship. The fact is that we are in a position where we know what the Government are ruling out very clearly; what we do not know is what they are ruling in. In fact, the debates taking place in the Cabinet, as I understand, this coming Wednesday, show that the Government are all over the show about the objectives that they have in the negotiations about the future relationship.
This amendment seeks to provide the means for Parliament to put pressure on the Government to come up with some clarity. There has been activity, yes—and the Minister laid out the wide range of things that have been going on in Parliament about Brexit—but the crucial issue of the future relationship of the UK to the EU is still vague or wishful thinking or a combination of the two. I think that the Government can do better than that and owe it to Parliament to do better, and this amendment is a way of putting pressure on our Executive and the Prime Minister to do something about that.
I will make a quick reference to the punishment scenario painted by the noble Lord, Lord Hamilton. There is a range of things on offer from the European Commission, including membership of the single market and the customs union—many things that would make it business as usual, such as in the EEA and so on. It is our Government who are ruling out those kinds of things, which would provide as much continuity as we possibly can, which seems to be the objective of what the noble Lord was saying.
With all those points in mind, and bearing in mind the hour, I would like to test the opinion of the House on this amendment.
Lord Callanan
I thank noble Lords for their contributions to this debate. I remain as confident as I was debating the first group that we will reach a positive deal with the EU and that Parliament will want to support it. However, the noble Lord proposes that, in the event of Parliament rejecting the deal, we should seek an extension of Article 50 and stay in the EU. An extension to Article 50 is not for the UK to decide alone. It would require the unanimous agreement of the European Council. This should not come as a revelation to any noble Lords, as this point was made clear before and during the passage of the notification of withdrawal Act.
I do not think it is by any means certain that in the event of having agreed everything, only to find that nothing is subsequently agreed, it would be in the UK’s or the EU’s interest to reopen, for an undefined and potentially endless period, our withdrawal negotiations. I know that many noble Lords take a great and affectionate interest in the European project. It is not right to seek to extend our negotiations and act as a block to the EU’s ability to address its priorities.
Here at home, this amendment touches on the points we discussed in the previous groups today. Again, it is not the role of the legislative branch to instruct the Executive on how to act on the international stage. I realise that EU exit might have changed some noble Lords’ minds on this position, but this would be a constitutional shift potentially larger than our departure from the EU and is not something to be entered into via an amendment at this stage of the Bill.
We are, however, absolutely committed to giving Parliament the final say and, in line with the request in the noble Lord’s Amendment 52, we will make every endeavour for this vote to be held before the vote in the European Parliament. Of course, this House and the other place will also want sufficient time to consider the deal and to debate it. The noble Lord’s statutory commitment to our political goal could place these in tension. As we cannot control the timetable of the European Parliament, if it chooses to rush to a vote faster than would allow this Parliament to properly debate the deal, we would not want to try to force this House to a vote before it is ready.
In reply to my noble friend Lord Balfe, we are engaging extensively with the European Parliament. Indeed, I have met with Richard Corbett, as well as many other MEPs. We have been engaging at a ministerial level, from the Prime Minister downwards. I myself have visited Brussels and Strasbourg and attended many meetings and discussions with numerous MEPs from all of the political groups. I am pleased to tell my noble friend that there is a lot of support for a good and constructive deal with the United Kingdom in the European Parliament. His point is well made. We are engaging extensively with it; I myself am doing so.
As noble Lords will know, the UK and the EU have the shared objective of reaching an agreement by October 2018. That ensures sufficient time for the vote to take place, in both this House and the other place, before the vote in the European Parliament and substantially before our exit day. This vote will have to be prompt to leave the requisite time for the passage of the withdrawal agreement and implementation Bill, to which we are also committed.
I hope that I have reassured the noble Lord of the Government’s commitment to delivering a timely vote and that a statutory direction to an extension to Article 50 is not appropriate. I therefore ask that he withdraws his amendment. Let me make it crystal clear that I cannot give him any false hope that I will reflect further on this issue between now and Third Reading, so if he wishes to test the opinion of the House he should do so now.
Lord Cormack
My Lords, I have no intention of seeking to test the opinion of the House on Amendment 52 because we have already passed Amendment 49.
Lord Cormack
I do not know whether I am grateful for that or not, but I made it plain at the very beginning that I would not ask the House to vote on Amendment 52. The House has passed an amendment with similar intentions by a large majority. I trust that the Government will reflect on the implications of your Lordships’ views as expressed in the Lobbies earlier.
Before I seek leave to withdraw Amendment 52, I say to my noble friend that although we share his hopes that the deal will be a good one and we would love to be able to share his expectations, various things have happened that make us concerned. We wish him and his colleagues well in the negotiations. We hope that the House of Commons, in particular, and your Lordships’ House will feel able to commend them, but we do not yet know, and it is important that we have safeguards in the Bill. Although now is not the right moment to press Amendment 62—my noble friend does not give much hope for us on that—I repeat what I said and what the noble Lord, Lord Reid, said in his admirable speech, underlined as well by my noble friend Lord Deben and the noble Lord, Lord Balfe: this is a common-sense amendment which is a logical follow-up to Amendment 49. I am sorry that the Official Opposition do not feel able to commend a vote and therefore I do not think there is any point or purpose in having one tonight, but we shall seek methods by which we can keep this issue on the agenda and have occasion to return to it later on Report, because there are amendments where we can refer to these things again and perhaps at Third Reading, too. I beg leave to withdraw Amendment 52.
Lord Callanan
My Lords, I understand the intention of the noble Lord, Lord Wigley. He is concerned, as are many other noble Lords, with the consequences of failing to reach an agreement with the EU or the equally unpropitious scenario of Parliament rejecting the terms of a deal that has been reached. The noble Lord’s amendment goes even further than that tabled by the noble Viscount, Lord Hailsham, in that it dictates, rather than leaves open, what should happen next in the event that the UK and the EU do not reach an agreement on the terms of our withdrawal; or if Parliament does not approve the terms of the withdrawal agreement, our notification under Article 50 should be revoked.
As I have explained already today, it is not constitutionally acceptable for Parliament to dictate the conduct of diplomacy in that way. Moreover, we are confident that we will reach a positive deal with the EU which Parliament will support. This is indisputably in the mutual interests of both the UK and the EU. Parliament will have a clear choice: to accept the deal we have negotiated or move forward without a deal. Ultimately, if Parliament chooses to reject the deal then we will leave the EU with no deal in March 2019.
The Government have always been clear what the outcome of failing to reach a withdrawal agreement would be. We are leaving the EU and will leave with a deal or without one. It is not a scenario that anybody relishes, least of all me, but it is also not one that should come as a surprise. The UK voted to leave the EU, Parliament voted to trigger the notification of withdrawal Act and the Government are honour bound to deliver on that instruction. We have been clear throughout that as a matter of firm policy we will not seek to revoke our notice under Article 50.
I therefore hope that the noble Lord will withdraw his amendment. I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if the noble Lord—
Baroness Hayter of Kentish Town
Do I take it from that that the Minister is not going to answer my question?
Lord Callanan
You can take it from that, yes.
I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if the noble Lord wishes to test the opinion of the House he should do so now.
Lord Pannick (CB)
Will the Minister please give an answer to the question posed by the noble Baroness?
Lord Callanan
I am not in a position to share confidential government legal advice on this matter.
Lord Wigley
Well, no doubt the House has taken good note of that comment and at some time in the future perhaps that information will become available. I am struck by the Minister’s supreme confidence that this course will be followed to an inevitable conclusion, as I am sure many noble Lords are.
As we heard in earlier debates, that may not be the inevitable conclusion. It may well be that the House of Commons in its wisdom not only rejects the deal that the Government have negotiated but in the process rejects the Government themselves. At that point, whether by a general election or some other process, the question may well arise as to the irrevocability of Article 50. Noble Lords have a right to know the advice that has been given because it would be very pertinent indeed in those circumstances.
However, having said that, I believe the question may well be tested in the courts and therefore, I beg leave to withdraw the amendment.
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
I thank the noble Lord, Lord Dubs, for moving his amendment and giving us an opportunity to speak about this further. We sometimes attach additional epithets to noble Lords in this House, such as “gallant” and “learned”. Perhaps the noble Lord, Lord Dubs, should be the “noble and compassionate” Lord. I appreciate what he is doing. It is for that reason that my noble friend Lady Williams and I have met the noble Lord and the noble and learned Baroness, Lady Butler-Sloss, on a number of occasions. The noble Lord, Lord Bassam, said that we must be clear about what we are trying to achieve. That has been the purpose of those meetings.
I will state very clearly what we are trying to achieve in the negotiations. The Government have been clear that when we leave the EU we will seek to maintain a close and effective arrangement, including practical co-operation with the EU and the member states on illegal migration and asylum. Combating illegal migration and having efficient and effective asylum systems will continue to be a priority on which we will work closely with our EU partners. As part of that arrangement, and subject to the negotiations, the UK will seek to agree with the EU a series of measures to enable unaccompanied children in the EU to join close family members in the UK or another EU member state, whichever is in their best interests. However, it is important to remember that any such agreement will require agreement and implementation by individual member states.
After the outcome of the negotiations is known, we will bring forward the appropriate legislation as necessary. At that stage this House and the other place will have an opportunity to be clear in their engagement with, and any desire to amend, that piece of legislation. The Government are very clear about what they are trying to achieve in the negotiations. We share the desire of the noble Lord, Lord Dubs, that family reunification rights for the purposes of considering claims for asylum and the systems to deliver them should remain in place once we have left the EU. There can be no dropped ball, diminution or loss—there needs to be continuity, seamless in its effect. It can be nothing other than that.
In my discussions with the noble Lord, Lord Dubs, we spoke about the Dublin III approach. The sad fact is that in many cases Dublin III is simply not fit for purpose. That is perhaps the greatest tragedy of all. Across the EU we look to that as though it sets a benchmark when in truth it is doing nothing of the sort—indeed, quite the reverse. In some instances there is opposition within member states to the functioning of Dublin III. Of course, Dublin III will evolve into Dublin IV, but Dublin IV will not come before the next European elections. That is unlikely simply because of the timetable. It is not for me to draw your Lordships’ attention to what we might expect in those elections but we must be cognisant of them. We have seen in election after election a growth in parties whose views about the wider issues of migration are perhaps not to be applauded and which are quite the reverse of the welcoming approach that we in this Chamber might believe needs to be stressed.
The danger is that we are recognising a benchmark inside the EU that even the EU itself does not believe is fit for purpose. We need to go beyond that. That is why I like to think that we are not seeking to measure ourselves against Dublin III but rather setting in place very clear measures which are safe and sure and address the very matters that the noble Lord, Lord Dubs, has raised. If we seek to use the EU as a benchmark, we will do a disservice to the very people who would need to draw on these elements. That might seem an odd thing to say, but noble Lords who have spent any time attending to how the Dublin III measure are evolving will recognise that that is one of the central problems.
I am aware that there are challenges ahead as we enter into the negotiations. A number of noble Lords have asked why this is not therefore placed in the Bill. What we are saying is that at the appropriate point these elements will be front and centre of a Bill before the other place and this House, offering exactly the opportunities that your Lordships would wish to have—at the right time. To bring them forward and try to put them into the Bill now—into what is, in effect, a pre-negotiation settlement—will cause us difficulties. That is why we have sought to be as forthright as we can about our intention, our ambition and our method. We do not wish to see these rights undermined or lost; we wish them to be sure and safe. It is for that reason that we have moved in this way. I appreciate that there is a desire to return this to the House of Commons, perhaps with the idea that we can again emphasise how exactly we will take these matters forward. That is your Lordships’ prerogative. I would argue that in the other place the same discussions may lead to a very different result, and that might send a message that this House might prefer not to be sent.
It is a difficult issue, because we are sending, I hope, a very clear message: the UK remains committed to the very elements that the noble and compassionate Lord has brought before us on this and a number of other occasions. We remain committed to them. They will be front and centre in our negotiations, and we have engaged directly with the noble Lord on this matter.
We have also recognised that when that point comes—when legislation or appropriate vehicles are required—there will be an opportunity, in both this House and the other place, to address the very matters that the noble Lord has raised today. On that note, I hope and wish the noble Lord will feel able to withdraw his amendment, recognising that there will be further opportunities for the noble Lord to fight with the same passion on this matter, as I do not doubt he will continue to do in the future. I hope, therefore, that he will withdraw his amendment.
Lord Dubs
My Lords, I am grateful for the support of Members of the House for this amendment. In a curious way I also thank the Minister for his support for the principle that I am trying to establish.
It seems to me that the clearest message of support for the amendment would be to pass it tonight. Anything else would look as if we were hesitating and not totally certain. I am sure the Minister and his noble friend Lady Williams are quite sincere in wishing to support the principle of the amendment. The signal we send, however, will be a different one. I do not see putting this in the Bill causing any difficulty. We ask only that the Government should have a basis for negotiating to achieve the end that we are talking about. If Dublin III gives way to Dublin IV, the Government will have the flexibility to negotiate on that basis. The proposition is clear, and I ask for the support of the House. I beg leave to test the opinion of the House.
Lord Hunt of Kings Heath (Lab)
My Lords, the noble Earl has done a great service in bringing this amendment back after a very good debate in Committee. Although much of the focus tonight has been on Erasmus, his amendment actually goes wider. However young people voted in the referendum, and whatever the outcome of the Brexit negotiations, the Government have said that post Brexit they want a closer partnership with the EU. Given that, there is a mutual interest in ensuring that young people enhance the opportunities that they have to work, enjoy, travel and get experience between ourselves and countries of the EU. The Erasmus programme is, of course, vitally important in that regard. The noble Lord, Lord Bilimoria, can speak with great experience, and he will know that since its start 600,000 young people, mainly, from the UK have taken advantage of it.
The Minister was sympathetic in Committee; he made it clear that the Government would expect that opportunities that arise for mainly young people will continue in future. But I want to bring him back to the point that the noble Earl raised, which was that he said that the Government would need to see what the successor programme was to Erasmus before committing on whether to support it or not. Tonight’s debate is really about encouraging the Minister to say that, of course, first of all, we should be talking to the EU about the successor programme. Secondly, whatever the technical details, it would be inconceivable that this country, one way or another, would not wish fully to embrace the successor to the Erasmus programme. I very much hope that the Minister will be able to signify that because he took a constructive approach in Committee, he will go just that little bit further and give us that kind of commitment.
Lord Callanan
I thank the noble Earl, Lord Clancarty, for the opportunity to discuss these important issues yet again. However, the purpose of the Bill is to provide a functioning statute book on exit day, regardless of the outcome of negotiations. It is our intention that the planned withdrawal agreement and implementation Bill will implement the major elements of the withdrawal agreement, which will include the agreement on citizens’ rights. This amendment seeks to make it an objective of the Government to achieve a particular outcome in the negotiations on our future relationship with the EU, effectively tying the Government’s hands. It is focused on the withdrawal agreement, but these matters are for our future relationship with the EU, which this Bill does not seek to address.
We have been clear that, after our exit from the European Union, there will continue to be migration and mobility between the EU and the UK. We have agreed an implementation period based on the current structure of rules and regulations. This will mean that UK nationals will be able to live and work in the EU as they do now until 31 December 2020. Looking to the future, the Prime Minister has set out her vision for our deep and special future partnership with the EU. She acknowledged that UK nationals will still want to work and study in EU countries, just as EU citizens will want to do the same here, helping to shape and drive growth, innovation and enterprise. She made it clear that businesses across the EU and the UK must still be able to attract and employ the people they need, and that the Government are open to discussing how to facilitate these valuable links.
Our science and innovation policy paper, published in September, said that we will discuss with the EU future arrangements to facilitate the mobility of researchers, academics and students engaged in cross-border collaboration. It remains in our best interest to ensure that businesses across the EU and the UK continue to be able to attract and employ the people they need. As has been said many times in this Chamber, and in the other place, we recognise the value of international exchange and collaboration through both work and study placements abroad. That applies to students from the EU and from many other parts of the world as well. Increasing language skills and cultural awareness aligns with our vision for the UK as a global nation. We will continue to take part in the specific policies and programmes which are to the UK’s and the EU’s joint advantage, such as those that promote science, education and culture.
As the House will now be well aware, no decisions have yet been taken on UK participation in the successor Erasmus+ programme after 2020. As I said in Committee, this is simply because the scope of the future programme has not yet been agreed. In response to the specific questions from the noble Earl, Lord Clancarty, we have made clear to Parliament our commitment to 2020 and this is detailed on the Erasmus website. I will write to the noble Earl with more detail on his other question. Future UK participation in such programmes will form part of the negotiations on our future relationship with the EU. The Government have been clear that there are some specific European programmes that we may want to continue to participate in as we leave the EU. This will be considered as part of the negotiations. Once again, I also reassure noble Lords that, whatever the outcome of those negotiations, we will underwrite successful bids for Erasmus+ submitted while the UK is still a member state, even if payments continue beyond the point of exit. Therefore, applications for funding from UK institutions should continue as normal—and they are.
For these reasons, I ask the noble Earl to withdraw his amendment, as I think he indicated he would do. However, I am unable to give him any hope that I will reflect further on this issue between now and Third Reading so, although he said he is not going to, if he really wishes to test the opinion of the House he should do so now.
The Earl of Clancarty
My Lords, I thank noble Lords who have taken part in this brief debate and the Minister for his reply. He gave the same reply on Erasmus as he has given previously and it is not good enough. We need to be in discussions now about shaping the new Erasmus programme; otherwise, I am worried that it is going to drift. I am sure that universities up and down the country are extremely worried about this. One thing the Government need to understand is that if opportunities for young people are diminished, we diminish the country as a whole. That is a major reason why we need to maintain these opportunities. These experiences, then, are not only for the sake of young people, important as that is, but society as a whole, because those experiences are brought back and reinvigorate us. We need to keep this going, and indeed expand it, not risk the possibility that we will shut these opportunities down. Young people need to have every opportunity in Europe to develop their future, and we need to allow them to do that. The Government cannot give that assurance. However, with regret, because of the late hour I beg leave to withdraw the amendment.
Lord Callanan
I thank the noble Baroness for her comments. Amendment 61, tabled by the noble Lord, Lord Bradshaw, but moved by the noble Lord, Lord Berkeley, seeks to maintain the UK’s participation in the single market if agreement is not reached in the areas of frontier controls, taxes and charges, free movement of goods and services, the digital single market, standardisation and UK involvement in European agencies. As a result of the significant progress made in negotiations, we are increasingly confident that we will secure a deal with the EU and that the prospect of leaving negotiations without a positive agreement has receded significantly.
I will say a little more about our objectives in the areas mentioned in the noble Lord’s amendment. First, on frontier controls, we have thought seriously about how our commitment to a frictionless border can best be delivered. Noble Lords will recall the Government’s clear position on this, which I touched on in my earlier remarks. On taxes and payments, the Government are committed to making cross-border trade as frictionless as possible after the UK leaves the EU and will take the necessary steps to ensure the UK economy remains strong in the future. On goods, a fundamental negotiation objective is to ensure that trade at the UK-EU border is as frictionless as possible. That means we do not want to see the introduction of any tariffs or quotas. To achieve this, we will need a comprehensive system of mutual recognition and the UK will need to make a strong commitment that its regulatory standards will remain as high as the EU’s. That commitment, in practice, will mean that UK and EU regulatory standards relating to industrial goods will remain substantially similar in the future.
As a number of noble Lords have mentioned, the UK’s services sector is a global success story. The Prime Minister has set out the Government’s objective of breaking new ground with a broader services agreement than ever before, with new barriers to trade permitted only if absolutely necessary. We want to agree an appropriate labour mobility framework that enables UK and EU businesses and self-employed professionals to travel to provide services to clients in person. We are open to discussing how to facilitate these valuable links. Given that UK qualifications are already recognised across the EU, and vice versa, it would make sense to continue to recognise each other’s qualifications in the future. An agreement that delivered these objectives would be consistent with the mutually expressed interest in an ambitious services agreement.
We have also been clear that, by virtue of leaving the single market, the UK will not be part of the EU’s digital single market strategy, which will continue to develop after our withdrawal from the EU. This is a fast-evolving, innovative sector, in which the UK is a world leader so it will be particularly important to have domestic flexibility to ensure the regulatory environment can always respond nimbly and ambitiously to new developments.
We will want to explore with the EU the terms on which the UK could remain part of EU agencies, such as those that are critical for the chemicals, medicines and aerospace industries—the European Medicines Agency, the European Chemicals Agency and the European Aviation Safety Agency. We are confident that a deep and special partnership is in the interests of both sides, so we approach these negotiations anticipating success.
In response to the comments of the noble Baroness, Lady Hayter, about Dover, Ministers have met representatives from the Port of Dover on a number of occasions, most recently on Monday 23 April. Furthermore, DExEU civil servants have an ongoing dialogue with the Port of Dover and Eurotunnel.
With that information, I hope I have provided a clear picture of the Government’s objectives for negotiating a deal with the EU in these areas and that the noble Lord will feel content to withdraw his amendment. I reiterate that I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if the noble Lord wishes to test the opinion of the House, he should do so now.
Lord Berkeley
My Lords, I am grateful to all noble Lords who spoke in this short debate. Apart from the Minister they all expressed concern about the state of the negotiations and where they are going. The Minister gave us a very positive view on how the negotiations were going, to such an extent that one is tempted to believe that by the time the Bill receives Royal Assent they will all be agreed. There is the slight problem that it takes two to agree. As we have heard on many occasions, it is not just the European Commission but the many other European agencies there. If the Minister is that positive and hopeful about all these agreements, it is tempting to argue that he should accept my amendment because it will not be necessary.
However, he did not say anything about the rules of origin, which the noble Lord, Lord Bilimoria, also spoke to at length—we both read the same paper at the weekend. It is a very serious issue, as he said. Without agreement on the rules of origin I do not think there will be much free movement of goods across the frontier. I do not think we will be able to agree rules of origin in a couple of months. It is a very long drawn-out issue.
I was also concerned when the Minister said that we are having nothing to do with the single market and the digital agenda. If we are outside the digital agenda, we shall have very serious problems in many sectors of trade with the European Union. I rather hope the Government will look at this again. The Minister mentioned the agencies. He did not mention the railways agency this time, but I am sure he mentioned it in previous debates.
I shall read carefully what the Minister said. I will not divide the House at this late hour because we will all fall asleep before we finish, but I know we shall come back to this. Talking to the people of Dover, the harbour board, Eurotunnel and everyone else is one thing; it is probably almost too late to make it work with the massive changes that could happen. I leave noble Lords with a thought: if you live in Kent, near Ashford, and you have continuous traffic jams of trucks on the motorway during Operation Stack, usually caused by either a strike in France or the weather, I cannot see that there will be many people voting for Brexit in Kent by the time this is all over. With that aside, I beg leave to withdraw the amendment.
Lord Callanan
“( ) No regulations may be made under subsection (1) after the end of the period of 10 years beginning with exit day.”
Lord Callanan
My Lords, in Committee many noble Lords raised valuable concerns regarding the use of the consequential power, or, I should say, the misuse of this power. In response to these concerns, and being conscious of restricting the scope of the powers wherever practical, the Government have tabled an amendment to sunset the power to make consequential amendments from 10 years after exit.
I would like to point out that it is unusual for such powers to be sunset. However, given the unique nature of this Bill and the concerns about future Governments abusing the power to make consequential amendments, the Government have taken the decision that it is right in this exceptional case to apply a sunset to the power. The Government arrived at the figure of 10 years as the consequences of the Bill may only come to light long after our exit from the EU. The fact that this period is longer than that afforded to the other powers in the Bill reflects this fact. While 10 years should ensure that the majority of consequential amendments can be made, there is still a risk that some amendments that it may prove appropriate to make could not be made if they were only discovered after this time. The Government believe, however, that the value of sunsetting the power outweighs those risks.
I know that there are other concerns about Clause 17, and the Government have tabled amendments to address those, in particular arranging for negative SIs proposed under it to be sifted. I look forward to debating these on a later day.
I hope that this amendment demonstrates yet again the Government’s commitment to satisfying the concerns of this House, and I hope that noble Lords will welcome this amendment. I beg to move.
Lord Beith (LD)
My Lords, I recognise that the Government have moved on this issue, even though 10 years is the longest sunset that I think I have ever heard of in any Bill—it has the quality of a north Norwegian, Arctic sunset, which pleasantly never comes. However, in this case, some date by which to end these rather wide powers is welcome. Of course, the Bill also has the limitation in Clause 17(2). It was the breadth of the powers that led us to table Amendment 85, which was not moved, and it was the Government’s willingness to move on this and some other amendments that made us feel that we ought not to press it. I hope the Minister recognises that any use of these consequential powers that appeared to go beyond what is genuinely consequential would raise the spectre that we had let through excessive powers. He will be well aware by now that this House has become increasingly vigilant about the breadth of powers granted to Ministers. In recognising that the Government have moved on this issue, we have not pursued other amendments.