Brexit: Transition Period

Baroness McIntosh of Pickering Excerpts

Monday 16th April 2018 Lords Chamber

Asked by

[Baroness McIntosh of Pickering]

To ask Her Majesty’s Government what assessment they have made of the implications for business of a short transition period as part of the United Kingdom’s withdrawal from the European Union.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, we have agreed a time-limited implementation period where businesses in the UK and the EU will continue to access each other’s markets on current terms and will ensure that they have to make only one set of changes. That is what business has been asking for, and that is exactly what it is getting. We are working at pace to ensure that all the necessary arrangements are in place for 31 December 2020.

[Baroness McIntosh of Pickering (Con)]

My Lords, my question actually related to the end of the transition period, which has been brought forward by three months. Will my noble friend commit the Government to keeping under constant review the state of preparedness of government departments and agencies, such as the Food Standards Agency and others, to ensure that all regulations will be in place? Assuming that the Government do not wish to be part of a customs arrangement with the EU, what will happen on the vexed question of rules of origin for industries such as the food industry, the car industry and other manufacturing industries that rely so much on imported goods?

[Lord Callanan]

I thank my noble friend for her question, but of course we want to be part of a customs arrangement with the EU. That is one of the matters that we will need to discuss with it. I can agree with her that the department keeps all the necessary arrangements under constant review, and we will do so throughout the implementation period to make sure that everything is in place for the end of that period on 31 December 2020.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, although we have left Clause 11, this amendment is closely related to the topics we discussed in the two previous groups. It seeks, first, to require a Minister of the Crown to lay before each House of Parliament proposals for replacing the European frameworks with UK frameworks, and it lists the particular items which are thought to be the subject matter of the frameworks that are needed. More importantly, proposed subsection (3) in the amendment seeks to provide that:

“Ministers of the Crown may create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations”.


So the issue of consent, perhaps more narrowly focused than in the previous discussion, is raised by this amendment as well.

The amendment was drafted some considerable time ago, when what was on offer in Clause 11 referred to the creation of these measures by Order in Council and made no mention of either consent or consultation. What we had before us, until it was withdrawn, was an amendment which reformed the machinery that Clause 11 is to provide by referring to the need to lay a draft of a statutory instrument containing the regulations under the section after consultation with the Scottish and Welsh Ministers. That is certainly a step forward, but what is sought by the amendment is one step further, which is the need for consultation.

In the discussion on Amendment 305, moved by the noble Lord, Lord Tyler, the noble and learned Lord, Lord Mackay of Clashfern, made the point that the safest way to deal with UK-wide frameworks is by primary legislation. I find it quite hard to understand how a UK-wide framework can be created by using the Section 30 power in the Scotland Act or the Section 109 power in the Government of Wales Act. Those are powers that are designed for dealing with the devolved Administrations separately, whereas the UK-wide framework of course involves the entirety of the United Kingdom, and I entirely agree with the noble and learned Lord that primary legislation would seem to be the proper way to go about it. Of course, if we are presented with primary legislation, the Sewel convention will apply and my point about consent will be satisfied simply by the machinery that has been used to create these frameworks.

We are of course dealing with something that is work in progress and we do not know quite what further discussions are going on in darkened rooms up and down the country where these matters are being debated. However, if by any chance the decision is that that has to be done by statutory instrument—I take it that this is not by Section 30 powers or Section 109 powers but by a UK statutory instrument—then the issue of consent is again raised, because the Sewel convention does not apply. I would like an assurance from the Minister that the principle behind Sewel will apply whichever mechanism is created. Of course, as I said a moment ago, the primary legislation will bring Sewel with it, but it would seem very odd if, by resorting to delegated legislation, the Government can bypass the Sewel convention. I do not believe that that is really what the Government want to do. I hope they will be prepared to say that they will be looking for consent as the mechanism which would precede the framing of any delegated legislation if it is decided to go down that road. But I stress that I agree entirely with the noble and learned Lord, Lord Mackay of Clashfern, that the proper way to create a UK-wide framework, which is what my amendment is talking about, is by primary legislation, in which case the issue of consent does not arise. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am a cosignatory to Amendment 314 and I associate myself with the eloquent comments made by the noble and learned Lord, Lord Hope, in moving it, and, in turn, the comments made by the noble and learned Lord, Lord Mackay. In the debate at the conclusion of business last Wednesday, a number of us put this specific point to the Minister, the noble and learned Lord, Lord Keen, which could have ended the concern that certainly I still have that we should proceed, for the reasons given, by primary legislation and that it would be inappropriate to proceed by delegated legislation.

I would also like to raise the timing of the framework agreements. In summing up the debate on Wednesday, the noble and learned Lord, Lord Keen, said:

“It is the table that identifies 24 areas where it is considered there will have to be some temporary ring-fencing so that we can establish the next stage of the process for the single market—the framework agreements that will then form the basis for that single market”.—[Official Report, 21/3/18; col. 403.]


It has been very firmly expressed by the Law Society of Scotland and others that there should be a timeframe for how long this arrangement will last. I pray in aid farm policy, which I understand is one of the 24 areas that have yet to be agreed, and point out that 85% of Scottish land currently has “less favoured area” status and attracts specific European grants accordingly. I also understand that Wales receives 10% of the farm funds. There is a concern that once we come back to having only a UK single market, both Scotland and Wales will receive less in farm support. My understanding is that Scotland would like to see a framework created and the powers devolved immediately, whereas the Government wish to take control to create the framework and then devolve it subsequently. So there are very real issues in specific policy areas over the timing and content of these framework agreements.

That brings me to this question of consent that keeps coming up. The noble and learned Lord, Lord Keen, said:

“Can we just remove that dichotomy of consultation or consent?”.—[Official Report, 21/3/18; col. 404.]


The problem we face is that the devolved Administrations clearly feel that currently they have consent at three levels. One is through the Sewel convention. The second is that when EU policy is agreed at the level of the Council of Ministers normally it is the Farming Minister who attends, accompanied by the Ministers of the devolved Administrations. The third level is when the devolved Administrations, in their own devolved legislation, implement the directives in the form they think most suitable.

We are very grateful to the noble and learned Lord, Lord Mackay, for setting this out so clearly. It appears so straightforward that our starting point is that in future the UK Parliament legislates for all matters relating to the single market of the United Kingdom. As the noble and learned Lord, Lord Mackay, said on Wednesday, it would be best for this to be implemented by agreement wherever possible. We seem to be edging towards that. In response to the earlier debate, the noble Baroness responded that there is not yet agreement but we are getting close to one.

When we take our oath and are introduced here, we swear allegiance and we are told that we have a voice. My concern regarding this amendment and Amendment 318, which was debated earlier, is that the voice of the devolved legislatures will simply not be heard in that interim between the framework agreements being agreed and subsequently devolved. That is why I support this little amendment and would like to hear more about why we could not proceed along the lines that the noble and learned Lord, Lord Hope, has set out in Amendment 314.

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I hope that I have given noble Lords some sense that, as we go forward with our approach to common frameworks, it is our endeavour to do so not just on the basis of a dismissive, quick flash of legislation as we move it towards the other place. That is not our intention at all; again in reference to the third subsection of the new clause proposed by the noble and learned Lord, Lord Hope, this will be fully consulted on, as per the established procedures, which we will take forward. I suspect that I should make reference to the useful intervention of the noble and learned Lord, Lord Mackay. I know that last week the noble and learned Lord, Lord Keen, heard what was said and will reflect on it. I hope that has given coverage to all the key issues we have raised.

[Baroness McIntosh of Pickering]

Can my noble friend confirm that it is the Government’s intention that this should happen by primary legislation?

[Lord Duncan of Springbank]

Yes, that is the intention. We will move forward with this through primary legislation in each of the common framework areas. On that basis, I hope that the noble and learned Lord, Lord Hope, will feel able to withdraw his amendment.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Monday 19th March 2018 Lords Chamber

[Lord Keen of Elie]

Switzerland is not de facto in the single market. Switzerland has a multiplicity of agreements with the EU that have been negotiated on a bilateral basis, which is the form of negotiation that we intend to carry out in due course. Membership of the EU is not, as I say, the touchstone of rigorous standards either in Europe or beyond.

With regard to the points raised by the noble and learned Lord, Lord Goldsmith—

[Baroness McIntosh of Pickering (Con)]

Is my noble and learned friend saying that we are now seeking an EU/Swiss-style agreement?

[Lord Keen of Elie]

I am not suggesting that for a moment. I was saying that these matters will be the subject of negotiation going forward; they are not ones for this Bill. What one cannot suggest is that, because we are taking the step of leaving the EU, we are determined somehow to see any diminution in the standards and obligations that we maintain at the present time. As this House will be well aware, the Bill is not designed to legislate for the major elements of any future agreement between the United Kingdom and the EU. Indeed, we cannot unilaterally legislate for our future relationship with the EU without the withdrawal agreement, or seek pre-emptively to provide for the possibility of maintaining particular functions or powers within the UK after we leave the EU.

This Bill instead aims to provide a stable and certain domestic statute book on exit day—a platform—irrespective of the result of the negotiations in any final agreement with the EU. The proposed amendments, therefore, do not assist in that process, but would potentially disrupt any negotiating process that is to be carried on. At the end of the day, I respectfully suggest that the amendment would not benefit the task we have in hand and I therefore urge the noble Lord to withdraw it.

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[Lord Callanan]

I am sorry that the noble Lord is outraged, but I am not going to stand here and try to instruct the House of Commons on what to do. It is quite capable of taking its own decisions. Many Members of this House have been Members of the House of Commons. I have not, but I am sure that if they want a vote on any subject they like they are quite capable of deciding the matter themselves.

Our focus now should be on making a success of Brexit, working to get the best deal possible, providing certainty and taking decisions on what kind of country the UK will be in the future. That is the clear instruction given to this Government in both the referendum and the general election. We believe that it is our duty to deliver upon it. A second referendum would pose a—

[Baroness McIntosh of Pickering]

I have not heard my noble friend respond to Amendment 357, tabled by the noble Lord, Lord Foulkes of Cumnock. If Spain retains a veto over any of the arrangements with Gibraltar, will the Government bring forward an amendment to the Bill on Report for this House to consider?

[Lord Callanan]

I suspect that we will still be in the process of negotiations at that stage. We have been clear that we are consulting closely with the Government of Gibraltar. Gibraltar is leaving the European Union at the same time as the UK is. We are negotiating for the UK and for Gibraltar, in close consultation with its Government. We recently had a ministerial meeting with them, chaired by my honourable friend Robin Walker, and we are keeping them closely informed about the process of the negotiation.

A second referendum would pose a serious risk of undermining our ongoing negotiating position. Worse still, it would prolong the period of uncertainty for businesses and citizens in the UK and EU. These are the unacceptable costs of what my noble friend referred to as a neverendum. In those circumstances, I urge the noble Lords to withdraw or to not move their amendments.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Callanan]

We have never used the term “a meaningful vote”. We recognise clearly the desirability of maximising as much as possible the time between negotiations concluding and a deal coming into force. Knowing the terms of a deal as early as possible is good for business and the public in being able to prepare.

[Baroness McIntosh of Pickering (Con)]

Pursuant to the earlier question, perhaps I have completely misunderstood what the Prime Minister said, but my understanding was that she promised a meaningful vote. Therefore, it would help if the Minister in summing up the debate we have just had would say what “a meaningful vote” means.

[Lord Callanan]

I have said on a number of occasions that we will put the outcome of the negotiations to a vote in this House and in the other place and of course we will respect the outcome of that vote.

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I am surrounded on this side, obviously, by people from the Labour Party. They are, on the whole, experienced at what we call compositing—it may also happen in the other parties. We have compositing meetings where a whole lot of amendments are put together—I see that we are not alone in this—and I say to the Committee and to the Government that I hope it will be possible to devise a single redrafted amendment, building on what we have heard today and on the wording of different amendments in this group, around which we can all rally. There is clearly a meeting of minds on this: there should be a timely and meaningful vote; it should be on the deal or, in the case of no deal, it should decide what happens next.

[Baroness McIntosh of Pickering]

My Lords, I am grateful to the noble Baroness. If she is minded to bring forward such a composite amendment, if we have established that the CRaG rules apply—this is clearly an international treaty that we are discussing—would she add that the meaningful vote in Parliament should be before votes in the national parliaments as well? That is missing from the current drafts.

[Baroness Hayter of Kentish Town]

My understanding is that this will not go to them. We are talking about the withdrawal deal, which will be a deal between the UK Government and the European Union. It is not a mixed agreement; it will not need to go to the parliaments and it is not a treaty. That is what all the legal advice I have had says, but I am happy to be put right. This will not go through that process. We are dealing with two things. The first is how we come out, which is the withdrawal deal. The second, quite separate thing is what will then be our relationship as a third party with the European Union, which will be the treaty. That is what will need to go through the parliaments—sadly not the Welsh Parliament, but there you are. I had understood that this is what CRaG would cover; I had not heard that quote until now.

This amendment focuses on the withdrawal deal, and it is this that should—indeed, must—be taken through Parliament in advance of the European Parliament and, even more importantly, in advance of where the Government finally get to, so that if it has gone the wrong way, we have the chance to put it right. That is what I hope we will be able to bring back on Report, but in the meantime I beg leave to withdraw the amendment.

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[Baroness McIntosh of Pickering]

My Lords, I support the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge, in this regard. My question goes to the comment of the noble Lord, Lord Lisvane, about scrutiny. Of course, he is the living expert on the level of scrutiny that an Act of Parliament enjoys in each House at every stage of parliamentary procedure. If the Government are seeking by regulation to achieve the equivalent of what has previously been achieved by an Act of Parliament, do the Minister and the Government have in mind what the level of scrutiny will be? Will it be the usual statutory instrument procedure, and will it be by affirmative or negative resolution?

[Lord Goldsmith (Lab)]

My Lords, we strongly support these amendments, Amendment 153 having been co-signed by my noble friend Lady Hayter. It would remove Clause 9(2) from the Bill entirely, and the more limited Amendment 154 would remove what are probably the most damaging words from it but not the whole of it.

This is the widest of the Henry VIII powers that the Government want to take in this Bill. It would permit regulations to do anything that an Act of Parliament could do, including even amending this Bill, when an Act. Those are the words that Amendment 154, in particular, focuses on. Therefore, as has been said, we could find that, after lengthy debate and a vote in this House and in the other place, the resulting provisions so painfully and lengthily resolved could simply be removed by the decision of a Minister.

The noble Lord, Lord Lisvane, gave some examples and the noble Lord, Lord Beith, gave more dramatic examples, but the critical question is: why is this needed? First, as the noble Lord, Lord Lisvane, rightly said, nobody should be misled by the words that are used. The word “modifying” might suggest at first blush that the provision is doing something less substantial, but in fact the definition of “modify” in Clause 14(1) makes it clear that it,

“includes amend, repeal or revoke”,

so the modification in question could take whole provisions away altogether.

The second point to underline—again, the noble Lords, Lord Lisvane and Lord Bilimoria, made this clear—is that what matters is not good intentions expressed at the moment by the Ministers in charge but what the Act actually provides. As parliamentarians, we would be failing in our job of scrutinising and controlling the Executive if we left Ministers with untrammelled powers simply on the basis that we would expect or hope that they would use them in a particular way or on the basis of them saying that they would not intend to use them in a particular way. That is not what we should do at all.

Therefore, it is no wonder that your Lordships’ Delegated Powers and Regulatory Reform Committee, in paragraph 23 of its report, described this power as “wholly unacceptable”, and that the Constitution Committee, in paragraph 197 of its report, described it as one for which it “cannot see any justification”. I know that the Government’s argument will be that they do not know what will be in the withdrawal agreement and therefore they do not yet know what changes will need to be made, including to primary legislation—for example, to the Immigration Act. However, there is neither a need to take these powers, nor is it right to do so, for two reasons.

First, it is clear that our withdrawal must be subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal—that is what Clause 9 will provide. So if the withdrawal agreement requires changes which cannot be effected by other powers—such as the power to deal with deficiencies under Clause 7—such changes can be incorporated into the statute approving the terms of withdrawal. Not only can such changes be included in that statute; they ought to be, because then they could be subject to a degree of parliamentary scrutiny. I agree with what the noble Lord, Lord Lisvane, and the noble Baroness, Lady McIntosh, said about the significance of scrutiny in this context. They could be subject to the degree of parliamentary scrutiny and approval which important changes to primary legislation should require.

The Delegated Powers Committee noted:

“The Government propose to take very wide-ranging secondary and tertiary legislative powers in the Bill, which would appear to cover every possible need to deal with failures and deficiencies in retained EU law as we leave the EU. Given the sheer width of these powers, it is difficult to conceive of areas where the proposed powers are not sufficient. However if the final withdrawal agreement includes something that is not capable of being legislated for under the regulation-making powers of the European Union (Withdrawal) Act, then Parliament should legislate rather than Ministers. Parliament is capable—


we all have experience of this—

“of passing urgent Bills with extraordinary expedition”.

Paragraph 197 of the Constitution Committee’s report, to similar effect, said

“As the clause 9 power cannot be used until a further Act has been passed—likely to be the withdrawal and implementation bill”—


which is what the Minister told us in a previous debate—

“we cannot see any justification for the inclusion of the power in this Bill. Parliament will be better placed to scrutinise the appropriateness of such a power, and the restrictions and safeguards it might require, when the terms of the withdrawal agreement are known”.

The committee recommended removal of that clause.

That is the answer I give to the noble and learned Lord, Lord Mackay of Clashfern. I hope he knows the high regard in which I and the House hold him, but in circumstances where there is to be an Act, where there are other powers to remove and make changes, this particular wide, untrammelled power is not necessary.

In addition to the strong constitutional reasons why this extraordinary power should not be left to be used by one of the many Ministers who have the power to issue regulations is the reason that it is remarkably widely drawn. We have debated in previous amendments that the formula used here—such provision as the Minister considers appropriate—suffers from the defect that it is both subjective and open ended. As I ventured to advise your Lordships in a previous debate, speaking from my own experience as a former Minister, adviser to Ministers and a practising lawyer, the exercise of a power so broadly expressed would be difficult, if not impossible, to challenge. The noble Lord, Lord Wilson of Dinton, put it memorably in the debate last week as another example of Ministers being given plump pillows of legal protection. That is an additional reason to object to this provision.

However, the primary constitutional reason that I have tried to identify still remains. I hope therefore that, in addition to answering the questions that have been put—including the question put by the noble Lord, Lord Beith, and others as to why the power is needed, and the question raised by the noble and learned Lord, Lord Hope of Craighead, as to the application of the Sewel convention—the Minister, when he replies, will indicate why the Government, in these circumstances, consider the power necessary; and whether they can now see, in the light of the changes made to Clause 9 and the other powers that exist, that they do not need it.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Lisvane, for his contribution and other noble Lords for their comments. This has been a genuinely interesting debate on a very important issue. When I was asked to respond to this group of amendments, I suspected that I had drawn the short straw. I realise that there are various parts of this Bill which for your Lordships are indigestible, but I think that what tops the list of gastric turbulence is the deployment of Henry VIII powers. Let me start by saying that if, when I have finished speaking, it remains the view of this Committee that subsection (2) of Clause 9 is a constitutional abomination, I shall faithfully reflect that view to my colleagues in the other place who ultimately determine the Government’s position. Having given that undertaking, I hope that noble Lords will permit me the opportunity to attempt to persuade them that subsection (2) is in fact a proportionate approach to the position in which we find ourselves, a question which has been very legitimately posed by the noble Baroness, Lady Smith, and the noble and learned Lord, Lord Goldsmith. For the benefit of them both, here I go.

It all starts from the Government’s commitment, which I hope is welcomed by all noble Lords, to ensuring that the outcome of the negotiations under Article 50 can be implemented in time for day one of our exit from the European Union. This Bill is designed to provide the essential legislative mechanisms to ensure that the UK statute book can continue to function once we have left the European Union. It would be wrong to pre-empt the outcome of the negotiations, and it is crucial that we have sufficient flexibility to make changes to the Bill to ensure that its provisions do not ultimately contradict the agreement that we have reached as to the terms of our withdrawal.

It is not unprecedented to create powers that are able to amend the very Bill in which they are created. Of course, we would expect the exercise of such powers to be subject to parliamentary control, as is the case within this Bill. Your Lordships may ask with some justification whether there are any precedents for this. I can point noble Lords to the Enterprise Act 2002 and the Third Parties (Rights against Insurers) Act 2010, which also confer powers to amend their own Acts. Noble Lords will note that these Acts were passed when those opposite me were sitting on the Government Benches. Arguably, we are being transparent in that we have made it explicit that this particular power might need to be used to amend the Bill once it is enacted. By doing so, we are also making it clear that the other powers in the Bill cannot be used to do so, and of course, as with all the other uses of Clause 9, it could be used only to make provisions to implement a withdrawal agreement on which Parliament would already have voted.

In the present circumstances and given the inherent uncertainty of what the withdrawal agreement will contain at the detailed level, it is vital that we are prepared for scenarios where we need to modify any Act to give effect to the withdrawal agreement in domestic legislation. It is recognised by both the Opposition and the Government that in our preferred negotiated outcome, some amendments may have to be made to the EU withdrawal Act—for example, to facilitate an implementation period. This is an inevitable consequence of the uncertainty that arises from the ongoing negotiation.

[Baroness McIntosh of Pickering]

My noble friend is referring to a situation that presumably would take place under the next Bill, when we have agreed the deal and then lay out the ground rules of the transitional arrangements and our future relationship. I am confused by what the timeframe for these regulations under Clause 9(2) will be, because subsection (4) clearly states:

“No regulations may be made under this section after exit day”.


If the Bill reaches Royal Assent by June this year, for example, how will we have enough time to scrutinise—under subsection (2)—any regulations adopted before that time? It is all very confusing.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Warner (CB)]

My Lords, as a former pharmaceutical and life sciences Minister, I rise to support the modest amendment moved by the noble Lord, Lord Patel. I have done my time in the salt mines of trying to streamline the processes for undertaking clinical trials in this country. Despite what the noble Viscount, Lord Ridley, said, it was not just the 2004 directive that caused problems for clinical trials in this country; it was sometimes the sheer bureaucracy of securing agreement to undertaking them, which has contributed to the departure of clinical trials and sometimes investment by big pharma in this country. It is all very convenient at present in some quarters to lay the blame at the door of the EU, but there are historical facts that support a more balanced view of the 2004 clinical trials directive.

From my experience, I know how critical it is for securing a flourishing pharmaceutical and life sciences industry in the UK, and the investment and jobs that that brings. For a decade or so, we have struggled to maintain the level of clinical trials undertaken in this country, and the pharmaceutical industry’s investment in the UK has been dropping. A number of people have made that point time and again in this House in debates with the Government on this issue. The new EU clinical trials regulation will have an incredible impact on the system for conducting clinical trials across Europe with its new single data portal. That point has been made very clearly by the noble Lords, Lord Patel and Lord Kakkar. We have to be a part of this future development if we are to protect our position on clinical trials and life sciences inward investment. That is why it is so important to have an amendment of this kind in the Bill.

I do not think it is fair to say that the Prime Minister’s speech of a fortnight ago is sufficient guarantee that everything will be all right on the night. We have had a number of those speeches on a number of subjects, which tend to show that it will not necessarily be all right on the night. The show may go on but UK participation in the show may be sadly absent in some areas that are critical to this country, as this particular sector of industry is. That is why we have to look a little more carefully at what sort of guarantees we want and that the spirit and meaning of the noble Lord’s amendment is guaranteed in the future.

I do not think we can just rest on ministerial assurances. It has been a convention in this House—I have been in it for nearly 20 years—that we accept ministerial assurances. However, on Brexit, ministerial assurances, while well-intentioned, are not always good enough to ensure that British interests will be guaranteed after we have left the European Union. That is why we need more than simply ministerial assurances. I would like to hear the Minister’s explanations of what the Government’s policies are and what they will do. I for one want to see an amendment of this kind to the Bill before it leaves this House. This issue is too important for a major sector of our economy. It is one of life’s great ironies that we, who have been a moving force in improving clinical trials with proposals for such trials in the EU could, by one of the strange fates of history, be unable to benefit from those improvements if we are not very careful. I hope the Minister will give us an explanation, but it will need just a bit more than warm words to give us guarantees on this issue before the Bill leaves this House.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am not an expert in clinical trials but there are remarkable similarities between the discussion on this Amendment 84, moved by the noble Lord, Lord Patel, and words expressed by the noble Lord, Lord Kakkar, at Second Reading on that group of directives and regulations that will have been adopted but not implemented at the time of Brexit. We had a full discussion, which I will not repeat at this time, but which was spoken to very eloquently by the noble Lords, Lord Wigley, Lord Judd, Lord Liddle, and, I think, the noble Baroness, Lady Young of Old Scone. The noble Lord, Lord Wigley, mentioned 23 directives identified by the House of Commons Library that fall potentially into this category. This is too important an area for us to risk being out of kilter, whether in clinical trials, the circular economy—as identified by the noble Baroness, Lady Young—or a number of environmental directives, to which I referred. This is too important an area—where Britain has been at the forefront of and party to all discussions at earlier stages—for us no longer to be aligned at the point of Brexit.

[Lord Ribeiro (Con)]

My Lords, I support the amendment because I think it is very important after all the points that have been made by previous speakers.

In my Second Reading speech, I referred to something slightly different: a loss of some £32 million to nuclear research, which would have gone to 25 university institutions, as a consequence of leaving Euratom and the Horizon 2020 project. The key benefits of the CTR are the improvement in collaboration, information sharing and decision-making between member states, as well as maintaining high safety standards for all participants in EU clinical trials. Withdrawing from these arrangements will have a negative effect on UK research and clinical trials.

The PM’s speech has been mentioned. It is worth reading because this is perhaps about holding her to account. She said:

“We will … explore … terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries”.


There is an opportunity here to hold her to account because it sounds as if the decision that was made early on to withdraw from Euratom was rather hasty and the consequences of it are only now beginning to dawn. The amendment is essential to re-establishing the research collaboration that we need with the EU, which has benefited us greatly in the past.

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[Baroness Goldie]

I am certainly interested in the point that the noble Baroness raises. I suspect that we have probably exhausted all possible aspects of this discussion, but I undertake to look at that point. As I said, I do not have technical information available, but I will certainly have that point clarified.

[Baroness McIntosh of Pickering]

We have established in this debate and in the earlier debates on Amendments 18 and 81 that precisely what the Government may wish to do, and what this amendment and Amendment 18 try to do, to which my noble and learned friend Lord Mackay has given a very elegant solution, are not permitted by the Bill. There is no legal basis. Will my noble friend come forward with a form of words to cover the 23 eventualities in the form of directives identified by the Library and other situations in the directive that apply to regulations, such as this, to give a legal basis to permit the Government to have the discretion where they choose to do so to implement the content of those directives and regulations at that time?

[Lord Judge (CB)]

If Clause 3(3) will not do the trick, will the Minister please take advice about whether we need to add EU regulation 536/2014 to the group of matters raised in Clause 2(2)?

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

It is to achieve clarity for the future that these amendments are crucial. I fail to understand why the framework we already have—of legislative consent—cannot simply be carried over and applied across the piece.

[Baroness McIntosh of Pickering (Con)]

My Lords, I support Amendment 130, to which I have added my name, and will satisfy the Committee’s curiosity as to why I have done so. I am a non-practising member of the Faculty of Advocates and have the lesser distinction than the noble and learned Lord of serving as a Bar apprentice with the firm of Simpson & Marwick as part of my training. I also made my maiden speech in the other place on the Scotland Bill as it was going through its various stages. I simply want to support everything that the noble and learned Lord, Lord Hope, has said in speaking to this amendment. This is of course a cause of great concern to the Scottish Parliament, which I understand debated this very issue with a number of practitioners, including a leading practitioner from the Law Society of Scotland, and a number of academics last Wednesday in its Finance and Constitution Committee.

I listened very carefully to what my noble friend the Minister said in seeking to satisfy the Committee this evening that we should desist from supporting this little group of amendments because the Government are coming forward with an amendment at Report. If that is the case, I urge my noble friend the Minister to share with the Committee this evening the full contents of that amendment. The noble and learned Lord, Lord Hope, has accurately identified the issues at stake, and anything that might jeopardise the fine balance achieved under the devolution agreement and the Scotland Act—I wish to speak only to Amendment 130 —would be regrettable.

[Lord Wigley]

My understanding is that the government amendment to Clause 11, which we will come to in due course and which was promised for Report stage, has in fact been tabled today and is public property. It is a nine-page amendment—I have seen a copy of it. Therefore, I think the Committee should have that information available to it.

[Baroness McIntosh of Pickering]

I am most grateful to the noble Lord. Perhaps it is my fault but I have not been able to access a copy of the amendment; as we conclude this debate, it would be very helpful to have the contents of it. For now, I support the amendment standing in the name of the noble and learned Lord, Lord Hope, and others. I hope that the Committee will persist with this little group of amendments.

[Baroness Randerson (LD)]

My Lords, this Bill gives UK Ministers powers to make statutory instruments that would include the power to amend the founding Acts of devolution without requiring the consent of the Welsh Assembly, the Northern Ireland Assembly or the Scottish Parliament. These powers could be used in relation to policy areas, as noble Lords have said, that are the responsibility already of Welsh Ministers, Northern Ireland Ministers and Scottish Ministers. The assumption is that the UK Parliament would legislate to alter their powers. Obviously, there may be times when this is pragmatically acceptable, but what is not acceptable or reasonable is that, under the provision as drafted, the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly are not required to give their consent.

I wish to speak simply and briefly, referring specifically to my experience as a Wales Office Minister, as a Member of the Welsh Assembly for 12 years, as a Minister in Wales and as a Minister for Northern Ireland in this House. It is safe to say that I have seen it from both ends of the telescope. It has been unthinkable from the start of devolution that UK Ministers would progress in these circumstances without the consent of the devolved Assemblies and Parliament. It has been an early-established principle of devolution that that did not happen. There has on occasion been sabre-rattling but it has not happened because that principle was established.

I am pleased to see the amendments of my noble friend Lady Suttie in relation to Northern Ireland because we are in danger of behaving as if the phase of devolution in Northern Ireland has passed. It is important that the Bill caters for the resumption of devolution in Northern Ireland.

I am pleased to hear from the Minister that the Government are planning changes. However, I know that he has too much respect for devolution to be happy with the situation in which he finds himself today. It is a muddle, a mess, and almost provocative. I certainly would not for one second lay this at the Minister’s door, but it is almost provocative to leave it to the last minute so that, effectively, the opportunity for government amendments in Committee has been lost. I am sad that we are in this situation because it is becoming increasingly negative, when we could go forward in a positive manner. I have tremendous respect for the Minister, his experience and his belief in devolution; I hope his replies will reassure us.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, I want to follow on from what the noble Lord said. I am not going to talk about Wales, but one of the arguments often put forward by Scottish nationalists is that we must not leave the European Union because we are so dependent on the single market that is the European Union. I think we should focus tonight on the single market that is the United Kingdom. I listened to the noble Lord and I take his point about the Barnett formula. He is absolutely right that it is extremely generous to Scotland and very unfair to Wales. In my opinion, resources should be distributed according to need and not on the basis of a formula that has been amended according to population. But if it is to be the case that the Welsh Assembly and the Scottish Parliament are to have a veto on these matters, what is the prospect of Wales being able to get a fairer share without that being vetoed by Scotland? It is a matter for the United Kingdom Government to decide for the United Kingdom as a whole, and for the single market that is the United Kingdom as a whole.

I have to say that I think the amendments from the noble and learned Lord, Lord Hope, are naive. We are faced with an Administration in Scotland who are absolutely determined to break up the United Kingdom —that is their purpose. We can have all the talks we want with the political Administration, until the crack of doom, but hey ho, we will find that they are saying something completely different from the civil servants. The civil servants will take exactly the kind of sensible, pragmatic, legalistic approach that the noble and learned Lord, Lord Hope, has. But the politicians have another agenda—an agenda which has been set back by the courage of the Prime Minister—which is to destroy the United Kingdom. As a unionist, I have an agenda to make sure that every part of the United Kingdom is treated fairly and that there is no veto for any part of it. We have four parliaments in the United Kingdom, but we have only one United Kingdom Parliament, and that is this.

When Lord Sewel produced his convention, it was greeted with great enthusiasm by the Scottish Parliament. If the noble and learned Lord looks at the record, he will find that this Parliament has legislated for the Scottish Parliament to a very considerable degree—mainly because, until recently, it sat for only one and a half days a week on legislation and so did not have enough time. Now we are in the absurd position where, when a perfectly sensible accommodation has been offered to them by the United Kingdom Parliament, the posturing of Ministers in the Scottish Government—which is about trying to create division and turn everything into a constitutional crisis—is against the interests of having a single market, which they say is essential to the Scottish economy in the case of Europe. Their position is that they do not want any of these powers to come to Wales, Scotland or the United Kingdom; they wish them to remain in Brussels. It is an utterly hypocritical stance. They would rather these matters were decided in Brussels, where even the Scottish Nationals elected as Members of Parliament down the Corridor would have no say. It is political gamesmanship and we would be foolish to accede to it.

We should proceed with the Bill, unamended, and ensure that the United Kingdom Government can work with the Parliaments of the various parts of the United Kingdom to preserve that single market—which, incidentally, is worth four times as much to the people of Scotland in income, jobs and everything else than the single market they purport to defend, which is that of the European Union.

This is a great deal of heat and waffle perpetrated by people who do not like the result of the referendum. They are terribly keen on referenda but find it difficult to accept the results. They argue that we have to have another referendum on independence and we have to have another referendum on Europe. I say to the noble Lord, who is normally very courteous, that to describe in such pejorative terms the 17.4 million people in the United Kingdom who voted to leave—400,000 of whom were Scottish nationalists—is following the course of his leader, who used disgraceful language to insult the 17.4 million people only this week.

I hope that the House will reject these amendments so we can get on with the task of making a success of the United Kingdom, which at last has the powers and authority to ensure that all parts of our country benefit from being able to determine our own affairs.

[Baroness McIntosh of Pickering]

My noble friend has given an interesting speech but it does not appear to bear any relation to the amendments before the House this evening. The amendments go to the heart of obtaining the consent of the Scottish people as expressed through the Scottish Parliament. He is a democrat, I am a democrat. Does he not agree that the amendments go to the heart of devolution and that that is what we are trying to maintain, particularly in the amendments that the noble and learned Lord, Lord Hope, introduced this evening?

[Lord Forsyth of Drumlean]

If the noble Baroness would like me to repeat my speech when she is listening, I will happily do so. However, I do not think the House would like me to. Perhaps she will read what I have said. She says that this goes to the heart of democracy: well, these are matters for the United Kingdom Parliament. There is no veto for any of the devolved Administrations. We have debated this endlessly. This amendment would give a veto; it would mean that the tail was wagging the dog; it would mean that the Scottish Parliament could prevent what was in the interests of the rest of the United Kingdom. That is not democracy.

The noble Baroness needs to address the words on the Order Paper—the words of the amendment—and listen to the arguments, instead of pursuing her ideological determination to reverse the decision of the British people.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I share the admiration of the noble Lord, Lord Deben, for the way in which the Minister summed up the previous debate. He was a rather brilliant performer of the work of the fire extinguisher. Foam was spread over all of us and calm ensued. It was a brilliant performance.

I am sorry that, this time, the Minister has to deal with pyrotechnics from a pyromaniac, in his colleague, the noble Lord, Lord Forsyth of Drumlean. It is rather a pity that the attacks of the noble Lord, Lord Forsyth, on the party now governing in Scotland are responded to only by a Welshman, the noble Lord, Lord Wigley. He responds very well, but, as a Scotsman who does not support the Scottish National Party, it seems to me rather an easy trick to score pyrotechnical victories against an opponent who is not in the room.

Trust is what this is all about. I can see nothing wrong with this amendment; I cannot see any reason why Ministers should not buy it now. If they cannot, a discussion needs to start. It does not help to insult the party in office in Edinburgh by implying motives. It may well have such motives, but they were not those it explained when it published a perfectly reasonable economic analysis at the end of last year which established clearly the damage that will accrue to Scotland from leaving the single market. The scale of the damage was almost exactly the same as what we have now seen in the Treasury analysis for the United Kingdom as a whole—eight, five, two: the same numbers pop up in both studies. The Scots are not being unreasonable or necessarily malicious when they say that they would prefer to remain in the single market. Of course, the market of the United Kingdom is more important to Scotland than the market of the rest of Europe, but that is not the point; they do not want to have to choose. That seems a perfectly reasonable position to adopt. It does not help establish trust to insult them.

[Baroness McIntosh of Pickering]

My Lords, I had no intention to speak, but having added my name to Amendment 124, I want entirely to endorse what was said by the noble and learned Lord, Lord Hope of Craighead, in introducing it. I want also to refute any allegation that I am an ideologue; I have always considered myself a pragmatist. It is unfair to impute a position to a party that is not represented in this House and cannot answer back to any of the allegations made previously.

I believe that this amendment goes to the heart of the consent and trust that has been debated here at great length. I declare a vested interest in that I am doing some work and I visited the offices that my noble friend Lord Forsyth opened: the Water Industry Commission for Scotland is doing some great work across the European Union, as indeed is Scottish Water, providing technical assistance. Obviously, one hopes that that work will continue after Brexit day. I do not see this amendment, spoken to by the noble and learned Lord, Lord Hope, or the amendment of the noble Baroness, Lady Suttie, as the tail wagging the dog: this is simply an effort to bring the Scottish, the Welsh and the Northern Irish people with the Government of the day.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

81: Clause 7, page 5, line 46, leave out “, comes into force or only applies”

[Baroness McIntosh of Pickering (Con)]

My Lords, I am most grateful to speak to Amendment 81, which for these purposes is joined with Amendments 95, 96, 100, 227C and 244. I see that the noble Lord, Lord Bassam, is not in his place. I would be interested to hear the content of the other amendments, but they seem to make very positive noises that there should be no increase in legislative burdens on individuals in businesses; that we should not exceed what is essential and not impose greater burdens; and that the Government should seek to make only technical changes and not to change policy materially.

I speak specifically to Amendment 81, which relates to deficiencies arising from withdrawal from the EU and considered in this group. The difficulty that I have with the wording as it stands in Clause 7(4) is partly because it contains a double negative and does not seem to be plain English, saying,

“retained EU law is not deficient merely because it does not contain any modification of EU law”—

and so it goes on. So partly the amendment is to express what is clearly meant, to seek greater clarity, but it also goes to the timing of the laws deemed to be deficient.

I think that it was my noble and learned friend Lord Mackay of Clashfern who said earlier that it was for Parliament to veto any statutory instrument put forward by government through the normal procedures of negative or affirmative resolution. Someone else in an earlier debate said that it should be the right of Parliament to be able to scrutinise amendments that fall under this clause—and, I would argue, particularly under Clause 7(4). So the question really to the Minister is to ask, if there is to be this scrutiny, at what stage this scrutiny would take place. My understanding is that the Minister is going to be able to act before Brexit to be able to prevent a deficiency from arising. My question is at what stage that would be and how Parliament will have the opportunity to scrutinise that. Also, if failure of retained EU law is a type of deficiency, and a failure means that the law does not operate effectively, we have already established that deficiency could cover a wider range of cases where it does not function appropriately or sensibly. Guidance as to who will actually decide what the deficiency is and when it will apply will be extremely helpful.

I mentioned at the outset that subsection (4) is not immediately clear. One turns to the Explanatory Notes and particularly paragraph 120, which says:

“Subsection (4) provides that the retained EU law in the UK is not deficient just because the EU subsequently makes changes to the law in the EU after the UK has left, or planned changes come into effect after exit. The law is being preserved and converted as it was immediately before exit day. The EU might go on to make changes to its law but those subsequent changes and the consequent divergence between UK and EU law do not by themselves automatically make the UK law deficient”.


I am not sure that this entirely clarifies the situation, nor does paragraph 116, relating to the earlier subsection (2). I want to probe the Minister to perhaps tease out what is the legislative deficiency, whether there is more than one stage at which it can apply, and who actually decides. If it is the Executive, at what stage can Parliament call them to account to scrutinise that? I hope that, in summing up on Amendment 81, the Minister can clarify, to create greater legal certainty, the legal basis for the functional restriction—where this is contained in a directive and therefore not retained or transposed into domestic law—to be described as a deficiency.

[Baroness Bowles of Berkhamsted]

My Lords, I speak only to Amendment 227C, just to say that this is a sort of “double omnibus” amendment in that it covers the whole Bill and also puts together, in its proposed new paragraphs from (e) onwards, some ideas about how to address in a generic way some of the concerns that other noble Lords have expressed in what I call the “Thou shalt not” clauses. Clearly, we cannot go through the Lobbies 20 times to deal with them all but, if this kind of formulation is adopted, we could achieve something that was both votable and covered a lot of the common ground that there appears to be when looking at other amendments, many of which will be spoken to later. I will limit my comments to that for now.

--- Later in debate ---

[Lord Callanan]

No. As I have made clear throughout the Bill, our minds are not closed on many of these matters. I think I gave the noble Baroness an example. It is a difficult distinction to draw about what is making policy or what is a policy choice. As I said, the choice between two regulators can be said to be a policy choice, but it is certainly not our intention to use any of the power in the Bill to massively expand on different levels of policy. It is our intention to impose a snapshot on exit day and ensure that the law is compliant and tidy, as we have said.

[Baroness McIntosh of Pickering]

My Lords, I am most grateful to the Minister and to all who have contributed to this little group. While I am grateful to my noble friend for his reply, I am not sure that he addressed the question of timings, and I am slightly concerned about the scope for judicial reviews. I end with the comment that the wording I seek to delete refers to the earlier Amendment 18, on which we had a lengthier debate, and to which I will return on Report. However, I beg leave to withdraw the amendment.

Amendment 81 withdrawn.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Elystan-Morgan]

I am pleased to stand corrected and apologise.

[Baroness McIntosh of Pickering (Con)]

My Lords, I will speak to Amendment 136, which is in my name alone. Clause 1 is the crux of the Bill. It calls for the repeal of the European Communities Act 1972 but is silent on the question of our membership of the European Economic Area and what the status of our membership of the EEA will be on leaving the European Union—or indeed what the status of instruments or amendments agreed under the European Economic Area will be, either as we leave at 11 pm on 29 March 2019 or in the future if we are in a position to negotiate remaining in the European Economic Area.

I will speak to a number of issues that flow from the comments of the noble Lord, Lord Wigley, about leaving the customs union. The Prime Minister has been quite clear about wishing to leave the single market and the customs union. However, at no stage has anyone in the Government explained to the great British public or indeed to Parliament what leaving the customs union will mean or what the consequences will be of negotiating a free trade area either with our existing European Union partners or with third countries. The first point to make is that we immediately become a third country at 11.01 pm on 29 March 2019.

I forgot to mention my interests as listed in the register. I am a non-practising Scottish advocate; I practised for a short time—for two and a half or three years—as a European lawyer in Brussels; and I was a Member of the European Parliament for 10 years and a Member of the other place for 18 years, so I will indeed be in receipt of a European pension.

I should like to consider the position of perishable goods. An example that is very much in the news at the moment is medical isotopes, but I am more familiar with the free movement of perishable foodstuffs from the time that I was a Member of the European Parliament, particularly between 1989, when I was elected, and 1992, when the United Kingdom joined the European Union single market. In leaving the customs union, we face the consequences of leaving the customs union. At Prime Minister’s Questions today, the Prime Minister repeated that we want to take back control of our own borders.

There is a conundrum here. I support enthusiastically what the Government and the Environment Secretary, Michael Gove, are trying to do—we are trying to increase the high standards of animal welfare that we already enjoy and to raise the standards of animal health, the safety of animal production and animal hygiene. However, particularly on the border between Northern Ireland the Republic of Ireland, there will have to be physical checks of animals and presumably of foodstuffs. I remember that as a newly elected MEP I got panic phone calls from companies in Essex, where I had been elected. People phoned or emailed and asked what I, as the local MEP, was going to do to move these goods along as they were time-barred. At the moment we seem to be going along on a wing and a prayer, hoping that everything will be all right on the night. I would like to hear from the Minister, when he responds on this group of amendments, what thought has been given to exactly what controls will be expected, particularly on the movement of perishable goods and the movement of animals, at borders such as the one between Northern Ireland and the Republic of Ireland.

I am also looking particularly at the fact that we are seeking to arrange new free trade agreements with countries such as Brazil and Argentina. It is no secret that they raise and rear their animals, and produce other products, to a standard that is considerably inferior to those in this country. I know that there is great concern in the Food Standards Agency about whether we will have time to put all the provisions in place governing how these imports will be considered.

--- Later in debate ---

[Lord Adonis (Lab)]

The noble Baroness is herself a distinguished lawyer, and she has raised one of the critical issues that we shall have to address in our debates: whether our membership of the European Economic Area automatically lapses by virtue of our leaving the European Union, or whether leaving it would require a separate Act on our part. As she said, she was a Member of the European Parliament for many years, and has practised law in Brussels, so will she give the Committee the benefit of her advice on whether she believes that our EEA membership will lapse automatically on leaving the EU or whether it would require a separate and explicit Act of Parliament, and therefore a vote in Parliament, to leave it?

[Baroness McIntosh of Pickering]

I am grateful to the noble Lord, but he places too great an emphasis on my legal abilities. I prefaced my remarks by saying that I am not an EU practising lawyer—although we do have a number of EU practising lawyers in this place. I would argue that no, our membership of the EEA will not explicitly lapse when we leave the European Union. This is a conundrum in which we find ourselves—or it could be the saving of us.

[Lord Newby (LD)]

My Lords, I speak in support of Amendment 6, one of the earlier amendments in the group. It would simply require that a report be laid before Parliament,

“outlining the effect of the United Kingdom’s withdrawal from the single market and customs union on the United Kingdom’s economy”.

This is a starter for 10 for the Minister, which he should be able to agree to—because such an analysis already exists. The EU Exit Analysis—Cross Whitehall Briefing explicitly does what the amendment requires. This analysis is not desperately long—only about 30 pages —but it would undoubtedly help Parliament if it were made more widely available. It is, of course, possible for Members of the other place or of your Lordships’ House to see the document, if they go through a rather demeaning procedure and go to a curtained room— curtained, I was told by the civil servant who was invigilating me, because the document is so secret that the light of day, far less outside scrutiny, cannot be brought to bear on it.

I wrote to the Minister asking whether it would be possible for the Government to make the document public on two grounds. First, the document already is public, because Laura Kuenssberg has got it and has tweeted about it. Secondly, the argument for keeping it secret advanced by the Government—namely that if it were public it would undermine our negotiating position—is clearly false; it is a factual economic analysis and one that has been widely replicated by other think tanks and economic forecasters. I am very grateful to the Minister for the reply he sent me on 20 February. However, I was rather disappointed that he repeated the point that it was impossible for the Government to make this public because of their obligation to ensure security of negotiation-sensitive material. Most assuredly, this document is not that. He also said that it could not be published because it did not represent the Government’s view and that publishing it would likely be misleading to the general public.

Let me remind the House what the general public would discover if they had the opportunity to read this document. It sets out three scenarios, one of which is too appalling, I am sure, for the faint-hearted to contemplate—including, possibly, the maiden aunts of the noble Lord, Lord Lisvane. It says that if we exited on WTO terms, in 15 years’ time the economy of the north-east would have fallen by 16% below that than would otherwise be the case. You do not need to be of a sensitive nature to be somewhat frightened by such a prospect. It shows that if we had the sort of deal that Canada is negotiating, the economy of the country as a whole would fall by almost 5% and in the north-east by 11%. It states that if we had the Norwegian model, which is the closest model that anybody has contemplated, we would still see a fall in GDP of 1.6% and of 3.5% in the north-east.

There are those in another place who say that this analysis is far too pessimistic and who have castigated civil servants for deliberately including unrealistic assumptions in it. There is one very narrow respect in which I agree with the suggestion that some of the assumptions are questionable: they are far too optimistic. The analysis assumes that the UK will, over this period, have entered free trade arrangements with the US, China, India, the TPP, the Gulf Cooperation Council, ASEAN, Australia and New Zealand. There is not a single soul who knows anything about trade negotiations who believes that that is possible. In that respect this analysis is too optimistic.

If this document were published, it would at least allow people to see the likely range of consequences and to discuss them. They would also discover that in a Canada-type arrangement, which is nearest to what the Government’s centre of gravity seems to be:

“There are over 550 individual restrictions on the services trade”.


That is a quote from the document, which means fewer jobs across the board in the services trade, not here, there and in odd little places, but across the entire board. So is it surprising that the Government do not want to publish this document? Will it be surprising if the Minister, when he replies to this debate, says that they do not intend to do so? I suspect that it will not, but I hope that he will follow the advice of his colleague in another place, the former deputy Prime Minister, Damian Green, who only two days ago said:

“If analysis is being produced then publish it”.


I agree: he should.

--- Later in debate ---

[Lord Lamont of Lerwick]

I would like to make a little more progress, as this is taking rather a long time. The rules of origin are one of the points for consideration. I know that a lot of British industry is worried about this but I noticed what Mr Azevedo, the Secretary-General of the World Trade Organization, said in a newspaper interview that he gave the other day. He pointed out that a large part of Britain’s trade, because we have a bigger percentage of trade with the rest of the world than some other European countries, already has to observe these requirements of documentation and rules of origin. He did not see that there would be a big problem in switching the rest of our trade to a similar regime.

I have also met representatives of some of the companies that run ports in this country, some of which operate on a WTO basis and some of which obviously operate on an EU basis. But when I talked to the management—I do not want to name them because they would not want to be too involved in political controversy—I was told that they did not see a huge difficulty in moving from one administrative system to another. Whether people agree with that or not, I put it to your Lordships that that is what the argument is all about: a trade-off between that and a free trade agreement with access to the market. It is not clear that the advantage is all one way.

[Baroness McIntosh of Pickering]

Does my noble friend not agree with me and the noble Lord, Lord Davies, on animal hygiene? Given the high levels that the Secretary of State has insisted our farmers will meet on leaving the European Union, how can we physically check the animals coming into this country when we leave if we have no customs controls at UK borders? It cannot be done by technology.

--- Later in debate ---

[Lord Callanan]

I responded to the noble Lord’s question about the legal advice and to the other points that have been raised. I will respond further in my forthcoming remarks.

[Baroness McIntosh of Pickering]

My noble friend has been most gracious in replying to one part of my question, but not the other part about the status of regulations. He has now accepted that we will remain in the EEA for the duration of the implementation period. The precise content of my amendment relates to regulations passed and decisions agreed by the EEA before the end of the implementation period. What will the status of those regulations be?

[Lord Callanan]

I understand that the regulations of the EEA will continue during the implementation period. For the period after the implementation period we will seek to negotiate an ongoing relationship with the other three member states of the EEA. Our aim is to ensure continuity with international partners and the EU during the implementation phase and certainty for businesses and individuals. This approach will mean that we seek the continued application of the EEA agreement for the time-limited implementation period to ensure continuity in crucial elements of our trading and non-trading relationship with those three EEA states. Participation in the EEA agreement beyond the implementation period would not work for the UK. It would not deliver on the British people’s desire to have more direct control over decisions that affect their daily lives and it would mean accepting free movement of people. As I have said to my noble friend, once the implementation period ends we will no longer participate in the EEA agreement. We will instead seek to put in place new arrangements to maintain our relationships with those three countries: Norway, Iceland and Liechtenstein. I hope I have made the Government’s position clear, and I hope as a result the noble Lord, Lord Wigley, will feel able to withdraw the amendment.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Lord, as I seem to have done for the past 20 years. I refer to my current interests on the register.

In 1972, during Second Reading on the then European Communities Bill in the other place, Sir Geoffrey Rippon said:

“I believe that we shall walk tall into Europe on 1st January 1973. We shall take our rightful place in the counsels of Europe. We shall compete and we shall contribute”.—[Official Report, Commons, 13/7/72; col. 1984.]


In leaving the European Union, we shall undoubtedly diminish our standing and influence in the world. It was Europe that brought me into politics. I was born of a Danish mother and Scottish father. Denmark was occupied during the Second World War, severely restricting the freedoms and liberty my mother could enjoy while growing up with occupying troops and tanks on the streets of Copenhagen.

I fervently believe that bringing our trading relations closer together across Europe, as our membership of the European Union has facilitated, has made the prospect of future conflicts in Europe much less likely. With the collapse of the Berlin Wall—I was there in November 1989, a day I shall remember all my life—we have seen an influx of countries and peoples from the former Soviet bloc, strengthening our defence against a potential foe. That same year, 1973, when we joined the European Union, I left Harrogate Ladies’ College to embark on my legal studies at Edinburgh University. I had high hopes of following a career in the European Community as it then was, and I did. I undertook a “stage”—an internship—in the Commission. I worked for the Conservatives in the European Parliament. I practised European law and I then became a Member of the European Parliament.

My overwhelming feeling in debating this Bill is one of sadness at the fact that many of the opportunities that I had in my 20s and 30s will not be available to future generations—namely, the right to live, study and work in another EU country.

I will set out why, in my view, the Bill is defective. In transposing into UK law those instruments such as regulations and decisions—instruments other than EU directives—the Bill seeks to introduce a new category of retained direct EU law, whose status seems far from clear, as was put most eloquently by the noble and learned Lord, Lord Judge, and other noble Lords. The provisions of the Bill lack clarity and legal certainty, and if I was a law student today I would find it impossible to understand its provisions. They do not entirely reflect the well-established principles of direct effect and direct applicability, and the relationship between the supremacy of EU law and retained EU law is simply not clear.

The Bill is further flawed by the huge power given to the Executive to pass secondary legislation through so-called Henry VIII clauses. While there is agreement across Parliament that new procedures are needed to ensure proper scrutiny—to hold the Government to account—I query whether new committees are required or this is best dealt with by beefed-up versions of the existing committees on delegated legislation.

If there is one unique contribution I can bring to the debate today, it is this: I argue—and have long argued in the other place and here—that there should be the opportunity to amend the content of those draft statutory instruments which come before both Houses, not just to vote for or against them. This is especially relevant as the Explanatory Memorandum to the Bill states that these laws, once transposed, can then be further revised and amended by Parliament post Brexit. But this would be a new power: a power to amend not just the title but the actual content of each and every statutory instrument. Clauses 2 to 9 are therefore ripe for amendment. I have a word of caution for my noble friends Lord Astor and Lord Ridley, and fervent readers of the Daily Mail: those of us who wish to improve the Bill stand prepared to perform our statutory and parliamentary duty of making it better.

We are faced with inconvenient truths: the UK simply cannot replicate the free trade agreements with the 70-plus countries with which the EU has a formal trade agreement, including Commonwealth countries. Although there are countries such as Vietnam outside these arrangements, in effect the potential market is very small compared to the existing single market of 505 million consumers. It surprises me that the Government took the key tools in their negotiating pack off the table even before negotiations began—namely, our membership of the single market and customs union. Considering the remaining options available, applying to join the European Free Trade Association would seem the next best thing to membership of the EU; and leaving with no deal, on World Trade Organization most-favoured nation terms, the worst. Being in EFTA would minimise the potential economic damage, solve the question of the Irish border and maintain our sovereignty. Were we to be outside the single market and EFTA, a dispute resolution mechanism must be agreed in regard to cross-border issues involving British goods entering the EU post Brexit.

In terms of agriculture and the environment, I believe that the common agricultural policy has made the EU supply chain more sustainable and kept prices stable. Since the referendum and the collapse in the value of the pound, food prices have risen sharply. The higher environmental standards have turned Britain from the dirty man of Europe to the clean and green land that we are.

I am proud that our history, cultures and destinies are shared with our European partners. The question today is what exactly the nature of our deep and special relationship, going forward, will be and whether that will be in the best interests of this place, of our country, of the British people, of British business and, especially, of the younger generation.

Brexit: Transition Period

Baroness McIntosh of Pickering Excerpts

Wednesday 31st January 2018 Lords Chamber

[Lord Callanan]

Yes. The Question was, “What are their objectives for the Brexit transition period?”. I answered what our objectives for the Brexit transition period were. The noble Lord then asked me about the wider renegotiation objectives, and I answered that—but of course the policy remains as set out by the Prime Minister.

[Baroness McIntosh of Pickering (Con)]

If we are leaving the single market and the customs union, as we have been consistently told by the Prime Minister that we are, at 11 pm on 29 March, how can we carry on trading on the same conditions as we currently do?

[Lord Callanan]

We are leaving the single market and the customs union on 29 March last year—I mean next year; I will have to do better in my speech later. That remains the position, but we have said that if we can negotiate an implementation period, then in the withdrawal agreement which will be put before your Lordships later this year, we will replicate the provisions of our current membership. So we will be out of it but we will replicate the provisions in an identical way for a strictly time-limited implementation period.