European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019
Baroness Goldie Excerpts(5 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Goldie (Con)
My Lords, the House of Commons is still considering this instrument. In view of the urgency of both Houses’ decisions today, it may be appropriate and for the convenience of the House if we adjourn during pleasure until the result of the other place’s consideration is clear. I therefore beg to move that the House adjourn during pleasure until 9.30 pm. I assure the House that we will not conduct further substantive business when we resume.
Brexit: No-deal Preparations
Baroness Goldie Excerpts(5 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Goldie (Con)
My Lords, I am sorry. The noble Lord was not in for the repeat of the Statement.
Lord Cormack (Con)
My Lords, I stress that I very much hope the deal will be accepted in the other place. If it is not, given the overwhelming view in both Houses that we should not leave without a deal, would it not then be sensible to use the delay requested by the Prime Minister to have some indicative votes in the other place and come together on a deal that can command parliamentary support? I hope that is not necessary—I support the Prime Minister—but if the Commons rejects it again, that would surely be the prudent way forward.
Brexit: Article 50 Period Extension Procedure
Baroness Goldie Excerpts(5 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Ludford (LD)
My Lords, I think the Speaker in the other place will tonight be a national hero for—
Lord Callanan
The noble Baroness stated that we will not leave on 29 March. Of course, she cannot say that definitely. UK law still requires that we do, and any extension—which we have said we will apply for—has to be agreed unanimously by the European Council. She asked about the European elections; I will give her a detailed answer. EU law requires European parliamentary elections to be held between 23 and 26 May, and the new European Parliament will meet on 2 July. For the UK to participate in the elections, notice of the poll must be published by 12 April. This is set out in Schedule 1 of the European Parliamentary Elections Regulations 2004. In advance of this date—in other words, by 11 April—the Government would have to set the date of the poll by making an order under the European Parliamentary Elections Act 2002.
Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union
Baroness Goldie Excerpts(5 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Goldie (Con)
I am sorry. A question was posed and the noble Lord has done his best to respond to it. I suggest that noble Lords exchange correspondence.
Brexit: Withdrawal Agreement and Political Declaration
Baroness Goldie Excerpts(5 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Callanan
That this House, for the purposes of section 13(1)(c) of the European Union (Withdrawal) Act 2018, takes note of the negotiated withdrawal agreement laid before the House on Monday 26 November 2018 with the title Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community and the framework for the future relationship laid before the House on Monday 26 November 2018 with the title Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom.
Relevant document: 24th Report from the European Union Committee
Baroness Goldie (Con)
My Lords, before we commence the adjourned debate, I observe that we have a lot of business to get through today, and I respectfully remind contributors from the Back Benches that the advisory time limit is six minutes. With the greatest of gentleness, I point out that when the clock shows “6”, this has a certain significance: it means time is up.
Lord King of Bridgwater (Con)
My Lords, as we embark on the third day of our deliberations, and the House of Commons approaches its penultimate day, I think there is not a single Member of your Lordships’ House who would not agree with the Prime Minister’s comment today that we are in uncharted waters. I would take that analogy further and say that the ship of state is at the moment adrift in a dangerous sea, with storm clouds building and with some dangerous rocks around.
If I talk about dangerous rocks, I refer noble Lords to today’s copy of the Times: just look at the stories of the world in which we live. We have President Trump threatening to devastate the Turkish economy if they invade the Kurds. We have the al-Qaeda affiliate that has now occupied or is moving on Idlib and taking over that province, so that threat has reappeared on the scene. We have the continuing drama of the Sunni-Shia conflict and the conflict in Yemen, which so tragically continues, and the continuing drama involving Mr John Bolton, who is reported in the Times today to be considering that the United States might bomb Iran, in retaliation for an attack that it thinks was carried out on US facilities in Iraq.
At the same time, closer to home we have the rise of the far right. We have the AfD party in Germany, which I see has already decided to adopt the policy of abolishing the European Parliament and is considering whether to launch in its election campaign, for the upcoming European elections, a policy of Dexit—which I suppose stands for Deutschland exit and Germany leaving the European Union.
The instability all around could not be greater. It has coincided with the shutdown of the American Government. Many of your Lordships will have received an email today, as I did, to say that the US minister counselor in the US embassy is unable to come to the House today because, while the shutdown goes on, she is not now allowed to interact with public meetings. Presumably, the great diplomatic scale and force of the United States around the world at the moment is pretty well paralysed.
To top it all, we also have reports from a new activity, of which I had never heard, called Redfish, which appears to be a Russian-sponsored invasion of social media. Using the ignorance of those people taking part in it, Redfish promotes damaging videos and YouTube presentations that are watched by anything up to a quarter of a million people. It is, presumably, a re-creation of what actually happened in the US presidential election and also, I dare to suggest, in our own referendum campaign—namely, of Russian interference and trying to achieve their own policy objectives in that way.
At the same time, we move against an unchanging background of mass migration of people and the threat of climate change, which raise enormous challenges. Against such a background, it seems to me that it is a matter of urgency for this country no longer to be lost and uncertain and failing to give the leadership that we should to our own people and to our country. We need to come together to resolve Brexit.
Everybody will know that I am a remainer. I believe that the outcome of the referendum was a tragedy, but I do not believe that it is possible to go back now. Europe has moved on. We wanted a larger, but looser, Europe. It is not looser; it is enlarged, but it has continued to try and run in the same centralised way as before. There is more majority voting. We would be stuck with the freedom of movement, and I believe that, if we did try to go back, we would be under pressure to join the euro and Schengen as well.
I look across the Chamber and pay tribute to the noble Baroness the Leader of the Opposition. She made a very good opening speech and managed to criticise everything that we are trying to do. We know that the Motion that she has tabled says that the Opposition are against no deal and against this deal. We wait to hear what they are in favour of—because there is of course a complete silence. That was cleverly and accurately identified by Mr Andrew Marr in the programme with Mr Jeremy Corbyn yesterday. Mr Corbyn was calling for an election, and Mr Marr immediately said, “Well, if you have an election, what are you putting in your manifesto about the issues over Brexit?”—to which there was a deadly silence.
There is plenty to criticise in the proposed deal. Anybody can find difficulties and issues that do not entirely meet the objective. However, overall, the main objectives have been met. When we discussed this in the days before, in the debate that was truncated, it was the worry about the permanency of the backstop that seemed to concern most people. There have been improvements on that, and perhaps we will hear a further Statement later today that will help to clarify that.
I want to make one point, in advance of my noble friend leaping to her feet. It is simply this. The best speech I have heard in these debates was made by the most reverend Primate, whom I am delighted to see in his place. He said that we have a moral responsibility. Of course it is right that the other place has to take the decision, but we have a moral responsibility to advise—and this time we want to go forward as a country. Too much anger and too much hatred have developed over this. We need to resolve this matter now. We need to respect the majority decision, but we need respect for the minority as well. I hope that those on the Benches opposite will see that the opportunity to come together, agree a deal and go forward is in the national interest. I hope that the noble and learned Lord, Lord Goldsmith, will pick up that opportunity.
Brexit: Withdrawal Agreement and Political Declaration
Baroness Goldie Excerpts(5 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Browne of Ladyton (Lab)
My Lords, I speak in support of the Motion of my noble friend Lady Smith of Basildon, and I am delighted to follow the noble Lord, Lord Forsyth of Drumlean, for a number of reasons. He has given me an opportunity to use a sentence that I never thought I would in my political career, which is that I agree with him. The Prime Minister’s deal is unacceptable. I am not tempted to engage with the elements of his excellent speech simply because I want to change the subject.
When she opened this debate on 10 December, the noble Baroness, Lady Evans, the Leader of the House, sought to persuade us that the withdrawal agreement and the political declaration represent the national interest and that they should be considered and,
“voted on as a package in the other place”.
She described the political declaration as outlining,
“the scope and terms for our country’s future relationship with the EU”.—[Official Report, 5/12/18; col. 979.]
Others have spoken before me, such as the noble Lords, Lord Dobbs and Lord Forsyth, and it seems to me that there is much more scope in this political declaration than there are terms. That relationship, she said, included security and defence, law enforcement and criminal justice, and referred to a security partnership which the Government assert will keep our citizens safe and will require negotiation of the broadest and most comprehensive security relationship in the EU’s history.
The UK’s internal security is a matter of the greatest importance and consequently I shall confine my remarks to the internal security challenges that the Prime Minister’s deal has generated for us, although, largely, these challenges are ignored by the Government Front Bench in this place and in the other place. On occasions their treatment of this issue has been more egregious than that.
On 17 December, when Theresa May returned from the European Council she said in a Statement to the other place,
“our Brexit deal includes the deepest security partnership that has ever been agreed with the EU”.—[Official Report, Commons, 17/12/18; col.527.]
At best, that language was odd; at worst, it was misleading. To clearly state that we have an agreement when no such agreement exists is misleading.
Thankfully, others were more straightforward. During the Recess, this issue dominated the news agenda for two days, on 27 and 28 December. The Metropolitan Police Commissioner, Cressida Dick, said in an interview on the “Today” programme that the consequences of not having a security deal—a no-deal Brexit—will,
“be more costly, undoubtedly … and potentially, yes, put the public at risk”.
In the same interview she said that our security would be lessened even if the Prime Minister’s deal is approved. That latter point received less publicity, but essentially is the issue that I want to expand on in this speech.
Apart from the Leader’s passing reference in her opening remarks to the necessity of the further work required to turn the political declaration into a legally binding treaty and the aspirational vocabulary of the declaration itself, no government spokesperson has ever given us any further information about how they plan to achieve their ambitious objective of,
“the deepest security partnership that has ever been agreed with the EU”.
Importantly, they have not admitted what they know to be the case—that the full benefit of membership of the EU in security terms cannot be replicated under the proposed deal at its very best. That was the very point that Cressida Dick made in her “Today” interview.
On 17 February 2018, at the Munich security conference, Theresa May pleaded for an urgent deal with the EU on post-Brexit security co-operation, warning:
“This cannot be a time”,
to,
“jeopardise the security of our citizens”.
Rightly, she said that the,
“threats we face do not recognise the borders of individual nations or discriminate between them”,
that a “deep and special partnership” in security was needed and that,
“we cannot delay discussions on this”.
In particular, she warned that if there is no special deal on security by the time Britain leaves, extraditions under the European arrest warrant will cease, and if the UK does not continue to be part of Europol, information sharing will be hampered, undermining the fight against terrorism, organised crime and cyberattacks, and putting all of our citizens at greater risk.
On 19 June in Vienna, in a speech at the EU Agency for Fundamental Rights, Michel Barnier clearly set out the EU 27 position on security co-operation. The European arrest warrant, Europol, The Schengen Information System, the European Investigation Order, and the ability to enforce judicial decisions across Europe in real time have obvious benefits for all Europeans, he said. Co-operation of this nature is both unique and unprecedented throughout the world but, as he set out in his speech, the trust that underpins this legal infrastructure requires common rules and safeguards, shared decision-making, joint supervision and implementation and a common court of justice.
What Monsieur Barnier described was an “ecosystem”. He was blunt in saying if you leave this ecosystem, you lose the benefits of this co-operation. While explaining that the EU wants an ambitious new relationship with the UK, he admitted that realism demands that we are honest about what is possible when the UK is outside of the EU’s area of justice, freedom and security and outside of both the EU and Schengen. My intention in this speech is to give the Minister the opportunity to be honest about what is possible in these circumstances.
I remind the House that in her Statement on the December European Council, the Prime Minister could not be said to have been fully honest with us when she said that we already had the necessary security partnership with the EU. Intelligence officers, police chiefs, security officials and even the Security Minister are constantly stressing how crucial quick and efficient data exchange is to counterterrorism, policing and law enforcement co-operation, and to Europe’s security. Most of this is done through access to EU databases, to which access is limited to those with EU or Schengen membership. There is clearly no guarantee that the UK could have access to this data post-transition, and there is no precedent for a non-EU country having such access.
At Munich, Theresa May reminded us that the UK has extradited 10,000 people through the European arrest warrant. For every eight warrants issued by other member states, we issue only one. She reminded us that the EAW had played a crucial role in supporting police co-operation in Northern Ireland and is fundamental to the security situation there. I remind noble Lords that before the European arrest warrant entered into force, 13 out of the then 25 member states, including Austria, Germany and Poland, had constitutional restrictions on extraditing their citizens. Some prohibited the extradition of their own nationals for all crimes. That is the situation in which we will find ourselves with those countries post our leaving the European Union.
In her opening remarks, the noble Baroness echoed a point that has been made repeatedly by the Prime Minister and other Ministers: that negotiating requires compromise. The question that the noble and learned Lord, Lord Keen of Elie, cannot duck in his response is: on what elements of security and to what extent are the Government willing to compromise? In the absence of an answer, the Government cannot expect our support. Nobody voted for less security when they voted for Brexit.
Baroness Goldie (Con)
My Lords, the contributions are exceedingly interesting but overrun creep is beginning to enter the proceedings. I respectfully remind your Lordships of the advisory time limit of six minutes.
Baroness Walmsley
My Lords, I did not speak in the first debate. The speaking time is advisory. A number of noble Lords who took seven minutes before Christmas have taken another seven minutes today. I have not spoken on these issues at all, and after 19 years in this House, I think I have a right to finish my brief remarks.
Finally, to those who say another referendum would be divisive, I say this: what would be divisive is to allow a minority Government without the consent of the people to take us into a situation that would make us poorer and less influential in the world. That would be unprecedented, undemocratic and a betrayal of future generations and the will of the British people.
Baroness Goldie
Well, my Lords, the overrun creep has just crept to a gallop. I can only plead with your Lordships that in deference to those who have still to speak, can we please try to respect the advisory speaking time? I think all noble Lords want to try to comply with that advice. We have to consider the position of those who are still to speak whose contributions we want to hear.
Baroness Walmsley
I ask the government Whip to bear it in mind that the Government have unnecessarily shortened the speakers’ list for tomorrow. If they had not done so, we would have several more minutes.
Baroness Kennedy of The Shaws (Lab)
My Lords, I do not support this withdrawal agreement and I will be supporting the idea of a second referendum. My first and preferred choice would be that we acted in our traditional way with representative democracy, meaning that we just sent back our letter of withdrawal from the European Union. But that is unlikely to happen—even with renewed vigour of the House of Commons. I support the Motion of the noble Baroness, Lady Smith, saying that we should take no deal off the table because of its catastrophic consequences.
I have a number of questions for the Government. Do they agree that if we head towards no deal, it will be necessary for there to be legislation to address the implications of that trajectory, given that the withdrawal Act did not contemplate or put in place steps to deal with no deal? I ask that because of the great experience of the learned counsel who sits on the Front Bench to answer such questions. If there is no deal, do the Government agree that the political declaration cannot be prayed in aid by no-dealers, because it does not apply, as it is part and parcel of Mrs May’s withdrawal agreement? Therefore, it falls away as soon there is a vote against the Government’s current deal.
I want to reiterate that, along with the rule of law, our parliamentary system of representative democracy has been one of our gifts to the world—certainly to many parts of the world. It is not our tradition to run things by plebiscite. We know that some policy matters of national concern are of such complexity that they require careful research and debate and the sharing of expertise. One thing that has happened since the referendum is that the general public have been learning, in the way that all of us have, about the sheer extent of our collaborations and the benefits that have come from our work inside the European Union and being part of that trading bloc. We have had the benefits of huge quantities of information, risk analysis and economic forecasting, and professional interventions by people in business, finance, vice-chancellors of universities, academics, doctors and scientists, researchers and inventors, agriculturists, environmentalists, artists, creators, lawyers and judges, the intelligence community and indeed the police. The evidence is overwhelming that to pull out of Europe, either with this current deal or with no deal, would have serious consequences for this country and wreak havoc. I am rather pleased to see the House of Commons asserting its powers again—indeed, taking back control, as was invoked. But it is within its power to say enough, and I hope that it will consider revoking Article 50, even if only to give us more time.
Of course people would be angry if there were a second referendum and the decision to leave were reversed, but many others will be very angry if we crash out of the European Union or find that this deal will leave our children and grandchildren with dire consequences. Mrs May’s deal is being presented now as the moderate middle way. I hear that coming particularly from the Cross Benches and I want to remind people that it is not a middle, soft Brexit: it is a hard Brexit that will provide us with no protection from the economic woes coming our way. As President Trump ratchets up pressure on China through the expansion of trade tariffs, we not only have to face the consequences that other countries will have to face, but the consequences will be worse for us than for other parts of the world. The exposure of UK banks to China’s downturn exceeds the exposure of the US, the euro area or Japan and Korea combined. Analysts in the World Bank and the Bank of England have already reported on their deep concerns.
We have been told that we are ready to embrace a new golden age. Mrs May said that,
“our best days lie ahead of us”.
Who is she kidding? That is all to save face, partly because her own Ministers proved such incompetent negotiators. The markets in the UK and the US experienced their worst year last year—the worst since the financial crisis in 2008. A few lucky hedge fund managers have made fortunes from the nosedive in the values of companies in recent months but, for most, the sharp downturn is bad news—lower pension values, falling taxable revenues and greater corporate pressures. That all adds up to serious problems ahead. A lot of companies such as Apple are already feeling the pain. A lot of that is to do with the slowdown in China’s economy. Is this the time for us to leap into the unknown? Do we really trust Mr Trump and his cronies? Are we happy that Putin is so pleased with our direction of travel?
I said in the last debate that this is an elite globalisation project wrapped in a flag of nationalism and populist concerns. It is motored by ideologues, and of course they have joined forces with those with the sentimental, nostalgic feelings that many of our fellow Peers have expressed. Basically, the ideologues want deregulation at all costs. They want small government and to tear up the social contract that provides solidarity, community values, social services and care. They are people who want, as has already been said by the noble Lord, Lord Campbell, to tear up the rules-based progressive internationalism of which we have been a part that was forged after World War II. They see those who do not agree with them as losers. This is the world of Mr Trump, Mr Bannon and Mr Farage, and the world of Messrs Johnson and Rees-Mogg. They are basically unpicking so much of the stuff that we have worked for since World War II.
The people of this country were lied to. I would say to the noble Lord, Lord Trevethin and Oaksey, that this is a plot against our democracy, but not by people who want to remain in Europe. It is a plot by people like Dominic Cummings and the people who put together that campaign, which lied to the British people and defrauded them. He asked, “Have you ever felt cheated?” Well, people will feel very cheated when the full extent of Russia’s involvement, of foreign money involvement, of the Mercers, of Cambridge Analytica and the whole ghastly business of the corruption of that first referendum will come to light. Then people will seriously feel that there was a plot against their democracy.
I am therefore going to vote down this withdrawal agreement and hope that our colleagues in the other place will receive resounding encouragement from all of us in this House to say that there should certainly be no question of no deal, but also of no withdrawal agreement as it is currently being presented.
Baroness Goldie
My Lords, I respectfully draw your attention to the advisory time limit. Mission overrun is with us again.
Baroness Kennedy of The Shaws
Nothing was said about two previous speakers, who spoke for far longer than I did from the Conservative Benches.
Baroness Goldie
My Lords, I endeavour to try and keep an eye on the general pace of progress. All I am observing is that we have re-entered an arena of overrun. I am in your Lordships’ hands. This is a self-regulating Chamber but the advisory time limit is six minutes.
Brexit: Preparations and Negotiations
Baroness Goldie Excerpts(5 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Kerr of Kinlochard (CB)
My Lords, the noble Lord has just talked about Boris Johnson, but I want to talk about a great Foreign Secretary. A fortnight ago we lost Peter Carrington, a great Foreign Secretary, a great Defence Secretary, a great Secretary-General, a great patriot and a great European. It is 46 years since I first worked with Peter Carrington. I knew him well and I know what he thought about Brexit. For that generation—that of Denis Healey on the beach at Anzio or Peter Carrington in the Guards Armoured Division liberating the Low Countries—“Never again” really meant something. For that generation, “Never again” meant ensuring no more war in Europe, ensuring the collective defence of Europe against external threat, rebuilding a broken Europe and working for its prosperity, and fostering and entrenching the values of Europe’s better nature. For all his endearingly laconic understatement, the commitment of Peter Carrington was very clear. Britain in Europe was a non-transactional relationship. It was about common values, a common effort to protect, and a commitment to advancement.
What would Peter Carrington have made of this White Paper? We do not know but, if he had written it, I do not think that it would have started with a “facilitated customs arrangement”. One can sense his shudder of patrician disdain. I think it would have started with something about values. It might have said something about the future rights of our fellow Europeans in our country and our citizens in continental Europe. The silence on legal immigration is very strange. As a great Defence Secretary, he might have wanted some restatement of the absolute nature of the British commitment to European defence. Whatever happens between the Brussels bean-counters, when the chips are down the Brits will be there. The Prime Minister fudged that a bit in her Lancaster House speech, but I thought she got it absolutely right in Munich in February. It is odd that the White Paper is totally silent on it. The reference on page 66 to a possible defence “enhanced Framework Participation Agreement” does not quite do the trick. The White Paper is a bit technical and bottom up. It is very transactional and it does not seem to have a lot of vision in it.
That is what Peter Carrington might have thought, but I do not know. He was a very skilled diplomat so he certainly would not have said, as the Prime Minister did on television and as Mrs Leadsom said in the other place, that the proposals in the White Paper are non-negotiable. Concrete on the feet is rarely wise. Of course, as the noble Lord, Lord Forsyth, pointed out at the outset, the proposals have already changed. The passage that the noble Lord, Lord Liddle, read out on the facilitated customs arrangement gave the foreigners the good news that we would not insist that third-country flows through their ports should be slowed down while they handled the segregated goods heading for us and operated two systems of taxation and checking. That was a relief for them, I am sure, except that the amendments made in the House of Commons mean that we do so insist that the ports of Rotterdam, Hamburg and Antwerp be clogged up operating two systems. So the proposals are negotiable after all, but only if you are British, Tory and a rebel. The 27 have to operate two systems where they now run one. They will not, of course. Why would they?
Actually, they would not have agreed with the White Paper’s proposal anyway, because the reciprocal regime at our ports is not one that they would be prepared to put up with. It is as inconceivable as it would be unprecedented that the EU should allow a third country, not a member state, to collect its taxes, which are important for its common budget, when no longer under the control of its court. As I mentioned to the House two weeks ago, the EU anti-fraud agency, OLAF, currently has two cases in the ECJ, each worth more than €3 billion, against the United Kingdom for undercharging customs duty and for allowing VAT fraud at our ports. I thought that Monsieur Barnier was spectacularly diplomatic when he said quizzically on Friday about the facilitated customs arrangement, “Would there not be a risk of fraud?”
Anyway, it does not work like that. If we leave the customs union we leave the customs territory and each check will take place at its frontier—unless, of course, we form a new customs union with the EU, as this House recommended when it accepted the amendment to the withdrawal Bill that I moved. We encouraged the Government to explore a customs union with the EU. I really think that they should. The facilitated customs arrangement will not run—it is dead already—and without a workable solution such as a genuine customs union I do not see how we can avoid the hard border in Ireland. The situation is now really very grave. We have accepted that a solution to the Irish question is integral to the withdrawal agreement. If we do not get one we do not get the other. We would kill off the transition period, so the no-deal cliff edge would be not December 2020 but next March.
Then there is the point from the noble Lord, Lord Bowness. The Minister appeared to put himself in the same camp as Mr Raab, who yesterday asserted that if what we have put in our White Paper is not agreed by the EU by October and if there is not an agreed framework text by October, we will resile on our financial commitments, refusing to pay the sum that we agreed in December that we owed. I have to say to the noble Lord, Lord Forsyth, that it is the cost not of the future but of the past. These are commitments. If we were to do a runner all bets would be off, with no deals doable, and not just with the EU. Third countries would be very chary of striking agreements with a UK that had no working relationships at all with its 27 neighbours—we would not have while they were dunning us in the courts for the money that we owe them.
I still hope that wiser counsels will prevail. I wish that we had a Carrington to provide them. I think that he would have been much less dismissive than Mr Johnson of the concerns of business on the no-deal scenario and of the importance of the Good Friday agreement. On the debt question, I think that he would have thought the idea of doing a runner a tiny bit dishonourable.
How do we get out of this mess? I have two suggestions. First, the Government should look again at the amendment proposed by the noble Duke, the Duke of Wellington, which the House also passed. No one knows—at least I do not—why the Prime Minister sent in the Article 50 notification on 29 March 2017. I have no idea. No one can assert that the country voted on 23 June 2016 to leave the EU on 29 March 2019. An extension is possible under Article 50 if all agree. Would they agree? I do not know. The noble Lord, Lord Birt, was doubtful. I think that it would depend on why we asked.
Let us bear in mind that if we go over the cliff in March, it is suicidal for us but it is bad for all 27 as well. Nobody wants that to happen. The EU has contingency plans for dealing with the European Parliament election should our departure date be pushed back. Mr Benn’s committee in the other place has recommended that it should be pushed back. The issue should be explored; it would be irresponsible not to. It would be irresponsible to crash out in eight months’ time if there is no done deal, doing huge damage to the economy, to jobs, to the stability of Northern Ireland and the well-being of our fellow citizens. Mr Rees-Mogg would be just fine—he has his money in Ireland—as would the Bullingdon boys, but as Sir John Major said at the weekend, the people who have the least would be hit the worst.
My final point is one that I have made before—I am afraid that I have made it tediously, but I must do it again. An Article 50 invocation is not an irrevocable act. Withdrawing the invocation would carry no price, political or financial. We would never have left. The terms of membership would not have, and could not be, changed without our agreement. If the Government cannot negotiate a Brexit which even remotely resembles what was promised in June 2016 and if the red lines which Mrs May wrote in September 2016 in the party conference speech turn out to preclude any workable solution to the Irish border, the country should certainly be asked whether—knowing what we now know—they would prefer that the notification be withdrawn. That might mean an election; it might mean a referendum; it might mean both. It would certainly mean an Article 50 extension, and this is the scenario in which we can be absolutely certain that we would get that extension. The 27 would unanimously agree straightaway to give us an extension if the purpose was to permit a people’s vote. The case for such a vote, before the people’s EU citizenship rights are extinguished and before the damage to their well-being really starts to bite, seems to me to grow stronger with every passing day and with every new lurch by the Government away from what a Carrington would have thought about Britain in Europe and about responsible leadership.
Baroness Goldie (Con)
My Lords, while the contributions are extremely interesting, the advisory time limit has been somewhat generously interpreted. In deference to the speakers further down the list, perhaps your Lordships could see what they can do to co-operate in rough adherence to the advisory time limit. Otherwise, we will be very unfair to some of the later contributors. We want to hear from them as well.
Lord Cavendish of Furness (Con)
My Lords, I follow a powerful and analytical speech from the noble Baroness, Lady Deech.
I fear that this White Paper cannot fly. In fact, I wonder if it is not already a casualty of gravity. My principal and reluctant reason for opposing the White Paper is that the more I read it the plainer it becomes to me that its adoption would render this country worse off than we are now. And that is our opening shot. No one seriously believes that the Barnier team are just going to leave it there. Attrition is the means by which these people work.
I home in on two issues. The first is the common rulebook. Its commonality is limited to Britain’s participation in a rule book that is written by the EU and run by the EU. Here I echo the noble Lord, Lord Howarth, when he quoted Mr Martin Howe QC. The UK would have to obey and apply in all respects the laws promulgated by the EU without having a vote on the content of those laws. Further, the UK would be obliged to interpret those rules in accordance with the rulings of the ECJ under a system that would, directly or indirectly, bind UK courts to follow ECJ rulings. I think that on that the noble Lord, Lord Mandelson, would agree.
Secondly, will we be able to alter current laws? I find nothing in the White Paper to suggest that the UK would be in a position to change any of the existing body of EU laws, however damaging they may be or become in the future. I have in mind restrictive EU laws that block the development or deployment of new technology, such as in the biotech area, where the UK enjoys global pre-eminence. This is a seriously important point. Here in Britain we look to innovation as the single most important pathway to growth. The EU appears to turn its back on it.
As significantly, the system is skewed in favour of existing technologies and against innovators. Once we leave the EU and no longer have a vote on the framing of these types of rules, the EU will have a positive incentive to frame the rules in order to disadvantage UK producers. The recent notorious Dyson case illustrates how the EU regulatory system for goods can already be skewed in favour of continental interests against British manufacturers.
In her speech, the noble Baroness, Lady Hayter, rehearsed project fear again. Unlike her, I have been in business—as listed in the register of interests—for 50 years, operating in scores of different markets. I have never woken up to certainty in my life—I have never looked for certainty—and I am utterly comfortable with operating under WTO rules, as are an enormous number of people to whom I speak and colleagues in business. I can tell the noble Lord, Lord Davies of Stamford, that it is a vanity of politicians that they run trade. In fact it is the people who produce commodities that can be bought and willing buyers who drive trade, not trade deals. In all of the markets in which I have operated, I never once over 50 years asked, “Do I have a trade deal with you?”
So what is the background to this mess? My inquiry stems from a little-mentioned fact that, for the first time I can remember in my life, the laws and the people have diverged. People used to look to the laws to protect them from an overbearing Executive and overbearing House of Commons—no more, and probably never again.
It is probably a good rule that politicians do not criticise civil servants. However, such has been the extraordinary and partisan involvement on the part of civil servants throughout the Brexit process that it is hard to ignore their role, especially when we reflect on the background to this White Paper. Let me say straightaway that our generally brilliant Civil Service has had to endure great provocation in recent years and better-qualified people than me need to address the many problems that beset the service and find enduring solutions to them. However, there can be no denying that Britain has a new ruling class—new to the extent that the power and influence of the official class has risen steadily as the power and influence of the political class has declined. I venture to suggest that this decline corresponds to the diminishing role of the modern Member of Parliament, a consequence of membership of the European Union. Nature abhors a vacuum.
Perhaps the Bench of superannuated mandarins in your Lordships’ House and the role that they have played in the Brexit process have attracted too little attention. Talk of “coming to heel” is not so far removed from “We are the masters now”. Plainly, former civil servants who come to this House are quite rightly liberated from the constraints of impartiality. They might even be forgiven for being a little demob happy. Some might question, however, whether it is right or indeed dignified for these very clever men to huddle in what my noble friend Lord Ridley has described as an “incantation” of mandarins—a collective term normally applied to warlocks—and, as they are driven by groupthink, they chant and parrot all the most absurd and disingenuous remainer slogans.
It is rather chilling to reflect that a group of people possessed of such famously bulging brains should lend their support to a measure as crassly ill-crafted and unsuitable for English law as the ECHR, a document which attracted, when it first appeared, almost universal derision and which was repudiated by senior members of both main political parties. In that case, it was instructive that the noble and learned Lords, with actual experience of the legal process, did not support that amendment.
We see a class composed of clever, well-paid, unelected, London-centric men and women who have gathered to themselves unprecedented levels of unaccountable power. They show conspicuous solidarity with their opposite numbers in Brussels and conspicuous contempt for the voting public. I suppose that one should be grateful that Mr Olly Robbins remembered to show the White Paper to the Prime Minister. This new power is being harnessed against the rest of us—the majority, as it happens—who ask for little more than to keep our well-tried institutions and preserve the freedoms that we used to enjoy through the ancient and always evolving system of representative democracy.
I conclude with a vivid memory. On Second Reading of the withdrawal Bill, the noble Lord, Lord Butler of Brockwell, expressed strong opposition to Britain leaving the EU, on which he has been consistent. He said that the wording of Clause 1 of the Bill,
“strikes a dagger to my soul”.—[Official Report, 30/1/18; col. 1411.]
It was a much-quoted phrase. Well, of course, out of respect and affection we all felt keenly for him in his anguish. However, we had barely regained control of our emotions when he went on to describe how mistaken the EU was in its rush towards a federal union, which, in the noble Lord’s own words, “may lead to disaster”. It was to avert just that disaster that thousands of people like me campaigned for Brexit and 17.4 million people agreed with us. The prescience of the noble Lord, Lord Butler, is already being borne out with yet more eurozone crises looming and yet more federalist solutions being proposed.
People understand the great issues of the day more than the likes of the noble Lord, Lord Kerr, give them credit for. While I cannot say that all the election results of my adult life have always given me pleasure, I believe that in every case the people merited the trust that the universal franchise conferred on them. Unlike many, I was privileged to know both my father and grandfather. Both returned from the horrifying conflicts of the 20th century and both bore the scars of those conflicts for the years that remained to them. They and those like them suffered and died so that we might enjoy the freedoms that have been defended by our forebears for probably 1,000 years. It is this priceless legacy that more than 17 million of my fellow countrymen voted to preserve. I can find nothing in this White Paper that will offer these people the hope and reassurance that they are entitled to expect.
Baroness Goldie
My Lords, I observe that we are now at the halfway point and, if my calculations are correct, it has taken us just under five hours to reach it. More noble Lords wish to speak and we want to hear their contributions. Six minutes can let a lot of very good things be said.
Baroness Altmann (Con)
My Lords, it is a pleasure to follow the noble Baroness, Lady Randerson. I congratulate the Prime Minister on publishing the White Paper, which could at last enable us to talk meaningfully with the EU. We all recognise that the White Paper is a compromise, designed to ensure that the UK position is more realistic than the previous strict red lines, often mutually exclusive, which seem to have been imposed upon the Prime Minister by the extreme wing of our party.
As a starting position, the White Paper is an achievement, but Cabinet reticence and changes to legislation forced through in the other place last week undermine even that position. I am afraid that it becomes clearer by the day that there are some, such as members of the ERG, who will never accept any reasonable deal with the EU. The ideologues have no plan of their own, just threats, obstructions and impossible demands. Indeed, the UK’s approach to Brexit has been rather like Gareth Southgate going to FIFA during the World Cup and saying, “We would like to continue playing in the competition but some of our players don’t want to participate any more as they don’t like the rules. However, the players have agreed that they will play in a few matches as long as England can choose its own referees, ditch the offside rule and play with 12 men sometimes if they want to”.
Such unreasonableness is not helpful. Therefore, I believe that if the Prime Minister wants to make progress in our Brexit negotiations—and I believe she does—she must accept that some in the party will never agree to any position that the majority in Parliament recognise to be vital to protecting our national interest. She needs to proceed with the more sensible, softer approach that this White Paper alludes to—no more fudge, no more bluff, no more stringing everyone along and hoping it will be all right; no more threats against our partners and fighting among ourselves. To thrive in the 21st century requires open arms, not raised fists. The time has come to face down the fantasy of cake and eating it. In the words of Abraham Lincoln:
“You cannot escape the responsibility of tomorrow by evading it today”.
Some key issues of concern have already been brilliantly exposed by previous speakers. Many noble Lords have insisted that democracy requires that the 2016 vote is sacrosanct. We must of course respect the will of the British people, but Parliament has respected the result of the referendum. It has triggered Article 50 and is now trying to negotiate a good outcome for the whole UK from a new EU relationship. However, the referendum did not specify a date on which we must leave, nor did it give a direction of travel.
This is about the ordinary people of this country who are trusting us to look after their future as best we can. Therefore, the current threats of no deal fill me, like so many other noble Lords, with horror. I fear that some are determined to obstruct progress in the negotiations for the next few months just to get to March 2019 when we will be out, due to the two-year limit, no matter the consequences.
People did not vote for no deal. By countenancing this, we are betraying most of the 17.4 million people who voted to leave in order to be better off, as the leave side promised, and all of the 16.8 million people who did not want Brexit at all. The referendum did not ask whether people wanted to leave the single market, the customs union, ECJ jurisdiction, all the agencies, and abandon the Good Friday agreement. People did not vote for that. The impact of no deal would be catastrophic. Indeed, the light at the end of the Brexit tunnel that so many leavers have told us about is really, I fear, an oncoming train.
The Japanese embassy has said that no deal is impossible for it to accept—the normally polite, understated and inscrutable Japanese have expressed their outrage with unusual forcefulness. London is a hub for European, Middle Eastern and African banking, but this would be at risk. The Chinese embassy itself has said that London risks losing its status as a banking hub if there is no deal.
No deal would mean the end of our manufacturing success, as integrated supply chains collapse, with workers’ jobs at risk. Car manufacturers have profit margins between 3% and 10%. Under WTO rules, car exports to the EU face 10% tariffs and car parts a 5% tariff. Indeed, the WTO has 135 different tariff rates on imports from third countries and 150,000 goods classifications to determine those tariffs. How do we think UK firms will cope with that? Much of our manufacturing is of intermediary goods: 70% of UK goods exports are intermediate inputs for manufacturers in the EU, which they then sell to the rest of the world. If the UK does not count in the EU rules of origin, EU firms will have to go elsewhere and will look to EU firms for their inputs.
Even in trying to negotiate new trade deals with other countries, the benefits have been overblown. The UK is no longer a hub to the rest of the globe as it was in the days of our Empire. We are a medium-sized country, dwarfed by the US, China, Russia, India and the EU. Countries of our size cannot define their own terms of trade when negotiating with whole continents. Those who naively hope for a trade deal with the US should wake up. The US has a vested interest in weakening the EU. Encouraging the UK to break away will increase American power and, once the UK is out, the US will be in a stronger position to give us a deal that is much more in its interest than ours.
Leaving the customs union and single market are acts of economic vandalism against both our own industry and that of the EU. Our negotiating position has asked the impossible. The EU cannot and will not give us the advantages of being in the EU, including security co-operation and membership of all the agencies that are so important to our way of life, while we do not have to obey its rules. It seems that many Brexiteers are willing even to put peace in Northern Ireland at risk—surely the Conservative and Unionist Party cannot accept that.
Something hardly mentioned is the enormous cost we have already imposed on the EU and on other EU countries. Domestic firms have also had huge costs imposed on them, and so have UK taxpayers. Our Government have taken no responsibility for this, and there has been no acknowledgement of the impacts of our decision. This has already resulted in a loss of respect for the UK on the international stage.
British values of decency, fair play and tolerance have been subsumed in the Brexit mania. If we do not retain EEA membership and a customs union or partnership, British people will be poorer as a result of the vote they were told would make them better off. To quote Cicero: “the welfare of the people is the highest law”.
European Union (Withdrawal) Bill
Baroness Goldie Excerpts(5 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Goldie
That this House do not insist on its Amendment 43, to which the Commons have disagreed for their Reason 43A.
Baroness Goldie
That this House do not insist on its Amendment 45, to which the Commons have disagreed for their Reason 45A.
Baroness Goldie
That this House do not insist on its Amendment 52, to which the Commons have disagreed for their Reason 52A.
Baroness Goldie
That this House do not insist on its Amendment 53 and do agree with the Commons in their Amendment 53A in lieu.
Baroness Goldie (Con)
The noble Lord’s eloquence is very diverting, but will he please speak to the Motion under consideration?
Lord Wallace of Saltaire
I started by welcoming what the Leader of the House said about the sifting committee and defending the role of this House and ensuring that this House plays its role. That is welcome language. We have not heard enough of it from the Government. We should all be worried about the potential deterioration of this debate. I wish merely to underline that the debate has got nasty on both sides. One MP was killed two years ago. Let us recognise that the current violent language may take us that far.
In the way in which we approach our task over the next six months, we will do our bit on the detail. I very much hope that the Leader will assure us that the Government will, all the way through, respect the appropriate constitutional role of this and the other House in dealing with a matter which is not simply decided by the referendum, because there is so much detail in it, and the detail always matters.
European Union (Withdrawal) Bill
Baroness Goldie ExcerptsWednesday 16th May 2018
(5 years, 11 months ago)
Lords ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 102-I Marshalled list for Third Reading (PDF, 72KB) - (15 May 2018)
Baroness Goldie
Baroness Goldie (Con)
My Lords, I shall not detain the House but shall be as swift as possible, because these amendments are straightforward and essentially technical. Amendments 3 and 6 ensure that there is consistency in the wording between the subsections of the Government’s status clauses. They do not change the operation of the relevant sections which the new clause signposts but ensure that the House and future readers of the Bill do not infer any difference of intention from a minor difference of language.
Amendments 4 and 5 add in missing cross-references. The amendments do not affect the substance of the clause, that retained direct principal EU legislation and retained EU law by virtue of Section 5 is to be amendable like primary legislation, and retained direct minor EU legislation is to be amendable like subordinate legislation.
Amendments 10 and 11 to Schedule 3 would insert new provisions to update the numbering of cross-references contained within the Government of Wales Act 2006 in consequence of provisions of the Bill that the House considered and approved on Report. This would mean adding a reference to a new provision and removing a redundant reference to a provision that is repealed.
Amendments 12 and 13 would, as we indicated on Report, adjust the wording of paragraph 37 of Schedule 7 to the Bill, which provides for the combination of instruments containing regulations subject to different scrutiny procedures in Parliament and also in the devolved legislatures. They would not change the policy that those provisions deliver but would ensure greater clarity as to the legal effect of the provisions.
I hope that noble Lords will recognise the importance of ensuring that we have a robust piece of legislation and support these amendments.
Lord Wigley (PC)
Before the noble Baroness sits down, were the changes in relation to the Welsh devolution settlement discussed with the Government of Wales?
Baroness Goldie
I have no specific information about that. The amendments are intended to help the Welsh Assembly and, indeed, assist any Government in the Welsh Assembly by ensuring that we avoid confusion and greatly improve clarity. I hope that the noble Lord will accept the good faith of the Government in trying to do everything possible to assist the devolved settlement in Wales. With that clarification, I beg to move Amendments 3, 4, 5 and 6.
The Countess of Mar
The noble Baroness can move only Amendment 3 at this stage.
Baroness Goldie
European Union (Withdrawal) Bill
Baroness Goldie ExcerptsTuesday 8th May 2018
(6 years ago)
Lords ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-R-VI Sixth marshalled list for Report (PDF, 210KB) - (3 May 2018)
Baroness Goldie
“(9A) See paragraph 3A for restrictions on the choice of procedure under sub-paragraph (9).”
Baroness Goldie (Con)
My Lords, I am pleased to move this group of amendments as the final piece—to use the analogy of the noble Lord, Lord Griffiths—of the devolution jigsaw puzzle in this Bill. The amendments in this group all relate, in different ways, to the scrutiny that the devolved legislatures will apply to the delegated powers for devolved Ministers in Schedules 2 and 4 to the Bill.
It is right that in conferring powers on devolved Ministers, the Bill should also provide for how they will be scrutinised. It would be irresponsible not to do that. We cannot confer powers and then make no provision for legislative scrutiny whatever. However, the Government recognise that the scrutiny of powers is ultimately a question for the legislature undertaking that scrutiny and the Administration being scrutinised. That is why the Bill consciously preserves the competence of the devolved legislatures, under the respective devolution statutes, to amend those parts of the Bill that make provision for scrutiny of devolved delegated powers. It is why we have sought the views of the legislatures and the devolved Administrations on the appropriate scrutiny arrangements, and these amendments reflect that engagement.
Amendments 69D, 72ZC, 78C and 115A allow for the “made affirmative” urgent scrutiny procedure to be used by devolved Ministers making regulations under their Schedule 2 powers. This was not included in the Bill as originally drafted because it is not a standard procedure in Edinburgh, Cardiff and Belfast. However, we have confirmed with the devolved institutions that this procedure is acceptable and that it should be available to devolved Ministers for the same reasons of urgency as it will be available to UK Ministers. These amendments will achieve that.
Amendments 69C, 70C and 77E provide for the “sifting committee” procedure to apply for negative procedure instruments laid by Welsh Ministers under their Schedule 2 powers. The National Assembly for Wales and the Welsh Government have both confirmed that this procedure should apply to the Welsh Ministers. These amendments would therefore apply the same procedure as currently applies in the Bill to UK Ministers.
Noble Lords will appreciate that there are very specific arrangements for committees in the Northern Ireland Assembly and this relates to the structures of power-sharing within the Northern Ireland devolution settlement. In that context it would not be appropriate for this procedure to apply, so we have not included it in the Bill. The Scottish Government have informed us that they and the Scottish Parliament wish to apply some form of sifting arrangement to the Schedule 2 power. However, their intention is to undertake this by means of their own legislation. As I have said, the Bill preserves the competence of the Scottish Parliament to legislate on this matter.
Lord Wallace of Tankerness (LD)
My Lords, I want to clarify what the Minister has just said. When she said that the Scottish Government and the Scottish Parliament wish to do it by their own legislation, is that their Continuity Bill, which is currently before the Supreme Court? If it is, what happens if the Supreme Court strikes it down, or maybe some other piece of legislation they bring forward?
Baroness Goldie
That is a reference to this Bill preserving the competence of the Scottish Parliament to legislate on that matter. I understand that it would have to make legislation within the competence of the Parliament. As the noble and learned Lord will be aware, the UK Government question the competence of the continuity legislation. That, therefore, as far as I am aware, is a completely separate issue and not what I was referring to.
Amendments 83KA, 83P, 83LA, 83MA and 112B require the Scottish Ministers to make the same explanatory statements when exercising the powers, under this Bill or when amending regulations made under Section 2(2) of the European Communities Act, that UK Ministers must make when exercising their powers. I will not stray into greater detail on each of these statements, as we have debated them at length already. I will, for the sake of clarity, remind noble Lords that this obligation to explain comprises seven elements. The first is a “good reasons” statement; the second is an equalities statement; the third is a statement explaining the purpose and effect on retained EU law of the instrument; the fourth is a statement of urgency when using the made affirmative procedure; the fifth is a “good reasons” statement when using any delegated powers to amend ECA Section 2(2) regulations; the sixth is, where appropriate, a statement of the “good reasons” for creating a criminal offence, and of the sentence attached; and the final one is, where appropriate, a statement to explain why sub-delegation of the power is appropriate. As is the case where a UK Minister sub-delegates the powers, there will also be a duty on the authority to which the power is delegated to then lay before the Scottish Parliament an annual report on the exercise of the sub-delegated power, if exercised that year.
Finally, Amendment 83AC makes a straightforward provision to clarify that the duties on UK Ministers to make explanatory statements when exercising powers under the Bill will apply when exercising the Schedule 2 powers jointly with a devolved Minister. A purpose of joint exercise will allow greater scrutiny by requiring instruments to be considered by this Parliament and the relevant devolved legislature. It would not, therefore, be correct for Parliament to receive less information in relation to the instrument than it would have received if the UK Minister had been acting alone, and this amendment clarifies that this will not be the case. The duty will not extend to devolved Ministers, but the statements, as with the instrument, will be the joint product of both Administrations. The statements, in being made available to Parliament, will also therefore be available to the devolved legislatures, and the relevant devolved Administration can choose whether to lay this alongside the joint instrument.
I hope that noble Lords will recognise these amendments for what they are: they are positively the product of our continued and sincere engagement with the devolved institutions. I also hope that your Lordships will welcome the steps this takes to respond to calls in this House and in other places for greater scrutiny of delegated powers. I beg to move.
Baroness Goldie
Baroness Goldie
“(2A) Before the instrument or draft is laid, the relevant Minister must make a statement as to why, in the Minister’s opinion—(a) there are good reasons for the instrument or draft, and(b) the provision made by the instrument or draft is a reasonable course of action.”
Baroness Goldie
My Lords, the statutory instruments to come under this Bill are the means to a unique end—correcting our statute book and properly incorporating an entire new body of law into our domestic legal order. I hope that the group of amendments I now have the pleasure of introducing is a demonstration of the Government’s commitment to transparency before Parliament. This transparency will enable Parliament to subject the Executive to the scrutiny that is only right and proper when we bring before your Lordships proposals for delegated legislation. A key part of this transparency offer is the array of statements which we are committing in statute will accompany each of the SIs and be published alongside them in their explanatory memoranda.
Before addressing each of the amendments in this group in turn, I wish to put on record the answer to some questions which noble Lords have raised regarding the provision at sub-paragraph (6) of paragraph 22 of Schedule 7. This provision does not circumvent the obligation to make any of the statements in paragraph 22. Rather it is an additional requirement, meant to create a further obligation to Parliament that if, for example, there has been some administrative error in publishing a statement, Ministers must provide an explanation to Parliament for their failure, in addition to providing the original statement.
Amendment 83D in the name of the noble Baroness, Lady Taylor, and the noble and learned Lord, Lord Judge, in common with Amendment 11, accepted two weeks ago by the House, introduces a distinction into the Bill which the Government cannot accept. This is a Bill to make, in common parlance, largely technical changes; substantial policy will be brought forward elsewhere. However, the distinction between technical changes and policy decisions is not one that could ever be defined in statute. Even the most technical of changes could constitute a policy decision, including as to whether to make the change at all. Nor, even if the noble Lords were to accept that point, can any clear line be drawn between technical policy, minor policy or substantial policy changes.
This amendment would require each Minister making an SI to make a declaration which depends entirely on where one is sitting—the prism through which one would see the amendment. For example, to the fishing community in Lerwick, the rules on the make and size of nets are certainly a matter of policy in which it takes an interest, while packaged retail investment product customer information requirements are most certainly a technical matter. I hazard that the asset manager in Kensington might feel a little differently. This amendment risks saying that either everything is technical, or nothing is technical. I hope all sides of the House will agree that neither of these positions is true. This is a Bill to make largely technical changes: that is our policy choice. As I am afraid that the two cannot be cleft asunder, I must ask the noble Baroness and noble and learned Lord not to press their amendment.
Government Amendment 83C and its consequentials 83H and 83J ensure that, where a Minister makes regulations under Clauses 7(1), 9 or 17(1), a statement must be made as to why there are good reasons for the instrument, and the provision made is a reasonable course of action. This is in line with the Constitution Committee’s recommendation in its ninth report and is, I trust, further evidence of the Government’s willingness to give due consideration to all amendments which do not undermine the fundamental operation of the Bill. I hope noble Lords will indulge me as I once again quote the Constitution Committee in support of the proposal. Such an amendment, it said, would:
“require explanations to be given for the use of the power which can be scrutinised by Parliament. It will also provide a meaningful benchmark against which use of the power may be tested judicially”.
The committee continued:
“In this way, the Government can secure the flexible delegated powers it requires, while Parliament will have a proper explanation and justification of their use that it can scrutinise”.
Of course, I cannot put forward these amendments without making reference to the “appropriate versus necessary” debate, which these government amendments were clearly a response to. This House came to a decision on that question which the Government are disappointed with. Nevertheless, I would still commend these amendments to the House in an effort to increase transparency by some considerable measure.
Government Amendment 83F is in a similar vein, and would require Ministers to make a statement as to the purpose of an SI before it is laid. The Government have reflected carefully on the concerns raised within this House that the intention behind a modification to retained EU law might not always be clear. Such concerns were particularly focused on how modified retained EU law may be interpreted in light of Clause 5(3), and whether a modification to retained EU law is to be subject to the principle of supremacy of EU law. These concerns have also been raised in relation to Clause 6(6) and whether an item of retained EU law which is modified after exit day is still to be interpreted in accordance with retained case law.
As was discussed in Committee, we expect in many, if not most, cases that it will be evident from the modification and the context whether the modification is intended, for example, to continue to benefit from the principle of supremacy, and whether modified retained EU law is intended to be interpreted by reference to retained case law. There is no getting away from the point that, ultimately, where such issues arise, they would need to be resolved by the courts on a case-by-case basis.
However, to ensure that there is the maximum clarity and transparency as the SIs are scrutinised and made, we have tabled Amendment 83F, which requires a Minister to make an explanatory statement about the purpose of the instrument, alongside the other explanations required in the same paragraph, including about the relevant pre-exit law and the effect of the instrument, if any, on retained EU law. The Government believe that this approach strikes the right balance by requiring Ministers to provide transparency on this point to Parliament and the courts without risking adversely fettering the discretion of our courts in terms of how SIs and modifications to retained EU law are interpreted. I hope, therefore, that this amendment can be supported across this House.
Noble Lords will all no doubt be aware of Amendment 83G, tabled by the Government, which would require a Minister to make a statement when exercising the powers to create a criminal offence. The statement will need to explain why, in the relevant Minister’s opinion, there are good reasons for creating the offence and for the penalty provided in respect of it. The statement will be made in writing by a Minister before the instrument is laid and will then be published, usually in the Explanatory Memorandum, to inform the deliberations of the committees and the House.
We previously touched on this amendment during debate on Clause 7, when we said that we would discuss what form this statement would take. This is still ongoing, although we will update the House as and when any decision is made on the matter. This amendment comes following the recognition of growing concerns in the House regarding the use of the powers to create a criminal offence. The Government’s plans for creating an offence will now be even more transparent to Parliament, and our reasoning will have to be clear and justified. This will ensure that the committees will have all the relevant information necessary at their disposal to make sound decisions when considering these important instruments. I hope, and am sure, that the House will welcome this.
I thank your Lordships for bearing with me. These are important issues and we thought it important that the House should understand the reasoning behind the Government’s approach to these matters. The Government’s amendments here provide for a material increase in the transparency of the exercise of the powers in the Bill. No one should underestimate how seriously these obligations are being taken by Ministers and officials. They have been designed specifically to address the concerns expressed in Parliament, and the Government intend to meet our end of the bargain in enabling effective scrutiny of the legislation we propose. I beg to move.
Lord Goldsmith
My Lords, it is a pleasure to follow the noble Lord, Lord Beith. The Government have moved on this, and that is to be recognised and appreciated, but they could have moved further, as the noble Lord, Lord Beith, has made very clear. It is slightly paradoxical that, as he says, the Government’s concern not to appear to be making policy changes prevents them adopting an amendment which makes it clear that what the instrument is to do is not to make a policy change. Be that as it may, although I find it hard to believe that the Government and their advisers could not have come up with a form of words that indicated the technical nature of the change being made while not falling into the trap of appearing to make policy changes, we would not prevent that amendment being agreed.
I want to underline three points which I invite the Minister to comment on. First, the way that these Ministers’ statements are described makes it clear that it is the statement of the Minister that is required. She spoke on at least one occasion about the Government’s view that something should be done, and no doubt the Minister would not do something if it were not the Government’s view. However, it is an important and critical part of the statement obligations that the Minister in question should apply his or her mind to the issue. That is the point that the noble and learned Lord, Lord Wallace of Tankerness, rightly made in the earlier debate. Therefore, I would be grateful for her confirmation that it will be understood that, where Ministers are to make such a statement, they have a personal responsibility to be satisfied. That is the whole point of including those words—so that the House or another place has the confidence and assurance that the Minister has focused on the issue and determined that the conditions are satisfied.
The second point I want to underline is that acceptance of these amendments does not in any way undermine the importance of the amendments that the House has already agreed in relation to the “appropriate” and “necessary” distinction. That requirement will remain, and the fact that the Minister’s statement may be expressed in different terms does not undermine it in any way. It will still be necessary—to use that word—for the necessity condition to be satisfied. I would be grateful for the noble Baroness’s confirmation of that.
My third point is that I, like the noble Lord, Lord Beith, am intrigued by the reference to the Government still considering the wording to be used for the creation of criminal offences. We look forward to seeing what they say. It sounds like it will be coming back at Third Reading, and on that I would welcome the Minister’s confirmation. In any event, in doing that, and as the Government consider their words, the House might expect the Minister’s statement to explain not just that there are good reasons for creating the offence but why there are good reasons for creating it in this way. Of course, as the noble Lord, Lord Beith, has said, there is no reason not to create criminal offences by primary legislation; our concern has been creating them by delegated legislation. The House will need to be satisfied that that is an appropriate thing to do in a given case. I look forward to hearing the response to those points.
Baroness Goldie
I now look forward to giving that response. I thank the noble and learned Lord for his comments. On his first point, which is fairly legitimate, he will be acutely aware that Ministers have not just a personal but a political responsibility. They are, in the office of being a Minister, responsible for having made the statement. That, I think, imputes to the Minister both a political and a personal responsibility. Governments of all colours act in good faith and the Ministers involved act in good faith. I think this House will be satisfied that Ministers of whatever political hue acting under these powers will genuinely have a personal focus on what is being discussed—I think “focus” was the word used by the noble and learned Lord.
The statement must both make the original statement and give an explanation of the delay in having brought the statement forward. I have tried to make that clear in my remarks: this is not an alternative responsibility but a complementary responsibility; the two things will apply. A Minister cannot shoal off one of them and offer the other. Both responsibilities will apply.
The final point was that, when creating an offence, the noble and learned Lord thought it was appropriate to justify not just why the offence was being created but why it was being created in this way. Again, that is ex facie. Part of the impact of the responsibilities of the Minister under the Bill, if so amended, is that they can expect to be questioned closely. Indeed, given the now very robust scrutiny procedures that are in place, Ministers will expect to be questioned closely not only as to why they are creating the offence, but why they are doing so in this way. That is implicit in the structure within which Ministers are now being asked to operate. I hope that to some extent answers the noble and learned Lord’s points.
Lord Beith
Before the noble Baroness sits down, I assume that she is going to answer the questions I put to her, not least about Third Reading but also about the importance of Ministers recognising that the inclusion of policy choices is something we would prefer not to see in delegated legislation.
Baroness Goldie
I am sorry. I did not have a detailed note about the point raised by the noble Lord, so may I undertake to write to him?
Lord Beith
I am sorry to press the noble Baroness, who is normally so helpful, but she has not clarified what she said about the Government reconsidering the wording in relation to criminal offences. It seems to me that, if the Government are reconsidering the wording, then we have to come back to that at Third Reading.
Baroness Goldie
We are not reconsidering. We are simply considering the appropriate text. The general point has been made clear by the Government: that they will not want to retract what is already their policy position. They will simply undertake to inform the House when a form of words has been adjusted.
Lord Newby
Is the Minister saying that the Government have no intention to come back on this issue at Third Reading?