European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019
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Lord Callanan
That the draft Regulations laid before the House on 25 March be approved.
Relevant documents: 54th Report from the Joint Committee on Statutory Instruments, 46th Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, first, I express my gratitude to the House for agreeing to suspend Standing Order 72 so that we can debate this statutory instrument today. I am also thankful to the Secondary Legislation Scrutiny Committee for its report, produced yesterday. In addition, I express special thanks to the other excellent committee, the JCSI, which met only this afternoon but has very helpfully released its view on the instrument and has not found any reason to draw it to the special attention of the House.
There was an important discussion yesterday about why the Government had asked the House to agree to take the debate without having a guaranteed report from the JCSI. Taking that decision was, in my view, the right thing to do and we should all be grateful to the JCSI for being prepared to do its work so quickly and thoroughly. I am sure that that has been of great assistance to the House.
Lord Forsyth of Drumlean (Con)
I am most grateful to my noble friend but, given that this has happened, surely it was not necessary to suspend our Standing Order.
Lord Callanan
Maybe not, but we did not know when the committee would be considering the report. It made special arrangements to sit—but I take my noble friend’s point.
Although the Motion approved by the other place on 14 March to seek an extension is not legally binding, the Government made it clear in that debate that we would seek an extension if that was what the House voted for. The other place then voted to approve a Motion to seek to extend the Article 50 period. An extension has therefore been agreed with the EU and the Government are now committed to implementing that extension in domestic law.
This is a vitally important instrument with a simple but crucial purpose. It will make sure that our domestic statute book reflects the extension of Article 50 that was agreed with the EU on Friday 22 March. As the House will be aware, the decision adopted by the European Council and agreed to by the UK provides for two possible durations. Should the other place approve the negotiated withdrawal agreement this week, the extension will last until 22 May. If it does not approve the withdrawal agreement this week, the extension will last until 12 April.
These regulations, laid under the European Union (Withdrawal) Act 2018, therefore cater for an extension in either scenario by redefining exit day to ensure that the day and time specified in that definition is 11 pm on 22 May or 11 pm on 12 April, depending on whether the other place approves the withdrawal agreement.
I note of course that the noble Baroness, Lady Hayter, has tabled an amendment to today’s Motion which I am sure she will speak to in a moment. As ever, my noble and learned friend Lord Keen stands ready to respond to that in his closing speech.
I take this opportunity to respond directly to a question put yesterday to my noble friend the Leader of the House by the noble Lord, Lord Pannick. I assure the House that the Government have considered carefully the vires under Section 20(4) of the 2018 Act and are satisfied that they have the power to make these regulations under that section. Section 20(4) provides that regulations may be made to,
“amend the definition of ‘exit day’ … to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”.
That power applies only where the day and time specified in the definition of exit day differ from that when the treaties will cease to apply.
Following agreement with the European Council last Friday, the day and time that the treaties cease to apply do now differ from that contained in the definition of exit day. However, the European Council decision identified two possible dates when the EU treaties will cease to apply. Consequently, the amendment to exit day reflects those two dates, applying the same condition, and, in doing so, ensures that the day and time specified in the definition are the day and time that the treaties cease to apply to the United Kingdom. Only one day and time will apply at any given time.
It would be contrary to a natural reading of the words in subsection (4) to suggest that the power may not be exercised in this way to reflect the conditionality in the extension agreed with the EU. I would also draw attention to paragraph 21 of Schedule 7 to the Act, which puts beyond doubt that the powers in the Act may be used to deal with supplementary matters.
The effects of the instrument will apply across the domestic statute book, so it is important that I set out the details of what it will do and why. Currently, major changes to the domestic statute book reflecting our exit from the EU are due to take effect on exit day, which is defined in the European Union (Withdrawal) Act 2018 as 11 pm on 29 March 2019, despite the extension terms that have now been agreed at the international level. These changes apply across a huge number of policy areas, from emissions trading to Europol. All the changes are designed so that our statute book works when we leave the EU. However, because in many cases they amend EU regulations they are inconsistent with the situation in which we remain a member of the EU for a couple more weeks or months.
Lord Wigley (PC)
Can the Minister confirm that, in the event of the vote in the other place on Monday leading to proposals for a different form of agreement, there is nothing in this order preventing another order from coming forward to further amend the date of exit if any changes that arise from the debate in the other place have to be negotiated with the EU?
Lord Callanan
No, there is nothing in this instrument that would conflict with that. What they are debating in the other place are effectively changes to the political declaration, not to the legally binding withdrawal agreement.
To avoid a conflict between UK and EU law, it is therefore essential that the instrument being debated today is made before 11 pm on 29 March so that it may come into force ahead of that time. This will align exit day with the new date and time on which the EU treaties cease to apply to the UK in EU and international law.
I am acutely aware of the huge amount of work undertaken by Members of both Houses to scrutinise the nearly 550 statutory instruments brought forward to prepare for exit. If this instrument did not pass, that work would be put under threat. I therefore hope that this House can agree on the necessity of this instrument and approve it so that, with the approval of the other place also, it can come into force and avoid serious confusion and uncertainty for businesses and individuals. I beg to move.
While I am on my feet, I want to take the opportunity to correct something that I said during exchanges with the noble Baroness, Lady Quin, at Oral Questions yesterday. The noble Baroness was in fact not a member of the Blair Government during the time of the Iraq war demonstrations, and indeed did not vote in favour of the Government’s decision to go to war. I have of course apologised to the noble Baroness, and I would like to take this opportunity to correct the record.
Amendment to the Motion
Brexit: Petition to Revoke Article 50 Notification
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Baroness Quin
To ask Her Majesty’s Government when they will respond to the petition created by Margaret Anne Georgiadou to revoke their notification of 29 March 2017 in accordance with Article 50 of the Treaty on European Union and to remain in the European Union.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, the Government will respond to the e-petition on revoking Article 50 in due course and within the required 21 days for a government response. It remains government policy that we will not revoke our Article 50 notice.
Baroness Quin (Lab)
My Lords, I have seen the response that the Government have already posted on the website. It is rather dismissive, simply repeats earlier responses and keeps the date of 29 March as a possibility for leaving. May I suggest an amended response to the Minister? It is: “Recognising that a petition which now has the support of pushing towards 6 million signatures cannot simply be dismissed as coming from an out-of-touch elite but represents an impressive swathe of opinion from right across the country, the Government from now on will ensure that the UK does not leave the EU without a deal and that any deal agreed by the Government and Parliament, however long that takes, will be put to the public in a public vote so that they can judge it alongside the option of staying a full member of the European Union”.
Lord Callanan
Of course we respect everybody who signed the petition. It is indeed an impressive number of people, but the noble Baroness was a member of the Blair Government when 750,000 people marched against the Iraq war. We know the result of that. In this country, we have government by the ballot box and by Act of Parliament.
Baroness Ludford (LD)
My Lords, how can the Government keep parroting that the will of the people is the same as it was three years ago when the electorate has changed, nearly 7 million people expressed themselves on the march, the petition wants to stop Brexit and polls consistently show a remain majority? If the Government really respected the people, would they not ask them for an update on their views?
Lord Callanan
We have explored this issue many times in response to the noble Baroness. We respect the result of the referendum, which was the largest participatory democratic exercise ever carried out in this country, and we are committed to implementing that result.
Lord Tebbit (Con)
My Lords, does my noble friend have any idea of how many of the signatories are British subjects and how many are foreigners?
Lord Callanan
No doubt my noble friend is an avid follower of social media and will therefore have seen some doubt being cast on some of the signatories, but I do not doubt that the vast majority were indeed British citizens.
Lord Roberts of Llandudno (LD)
Does the Minister realise that there is more than one online petition? The one to revoke has brought in nearly 6 million signatures, but the one to leave has brought in 570,000 signatures. Should we not now respond to the recent will of the people?
Lord Callanan
As I said earlier in response to the noble Baroness, Lady Quin, in this country we do not have government by online poll; we have government by the ballot box and by this Parliament, and that is what we will be following.
Baroness McIntosh of Hudnall (Lab)
My Lords, does the Minister agree that in seeking to make a party-political point earlier he rather undermined the force of his argument? It might be thought by a number of people in this House and elsewhere that had the Labour Government at the time taken more notice of what was brought to their attention by that march, very bad consequences might have been avoided, and that might be true in this case as well, might it not?
Lord Callanan
I was merely making the point that there have been large expressions of public opinion—demonstrations, internet polls and so on—during previous Governments. At the end of the day, we do not have government by internet opinion poll; we have government by participatory democracy, by the ballot box and by this Parliament.
Lord Lilley (Con)
My Lords, does my noble friend recall the Prime Minister saying at the opening of the referendum campaign,
“It will be your decision whether to remain in the EU on the basis of the reforms we secure or whether we leave. Your decision. Nobody else’s. Not politicians’, not Parliament’s. Not lobby groups’ … Just you”?
Does he recall any of the leaders of the remain campaign dissociating themselves from those remarks?
Lord Lilley
I recall them being endorsed by Tony Blair, Gordon Brown, Nick Clegg and others. Would it not be an enormous betrayal of trust and undermine confidence in our Parliament and our system if we were to ignore the result and simply revoke Article 50?
Lord Callanan
As usual, my noble friend makes a powerful point. We need to respect the votes of 17.4 million people, which is a bigger number than the 5 million who signed the online petition.
Lord Anderson of Swansea (Lab)
My Lords, is there not a contradiction between the Government’s expressed intention to put the deal before the House of Commons again and again but not to give the British people a chance to have second thoughts?
Lord Callanan
We remain committed to trying to convince the House of Commons that it is a good deal. It is of course a compromise—nobody gets exactly what they want—but we think that it is the best deal on the table. In fact, it is the only deal on the table, and it will deliver a smooth and orderly departure.
Lord Lansley (Con)
My Lords, I declare an interest as the Leader of the House of Commons who introduced the parliamentary e-petition system. It is of course a petition to Parliament, not to the Government. In that respect, does my noble friend agree that the necessary response is that, as the House of Commons is taking some control of this process, it should incorporate a debate on the merits or otherwise of revoking Article 50 as part of its discussions in the coming days?
Lord Callanan
My noble friend makes a good point, and that is exactly what will happen. There will be a debate in Westminster Hall and the Government will respond appropriately.
Brexit
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The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, today’s debate has allowed us the opportunity to explore the recent developments in relation to our exit from the EU. I am yet again grateful to all noble Lords who have spoken for their insight and contributions, even if one may say we did not hear much that was new or original. Indeed, noble Lords will not hear much that is new or original from me, but I will seek to address as many of the key points arising from the debate as I can while conscious of the late hour.
It is worth saying again that the experience and expertise demonstrated by noble Lords today is consistent with the valuable contributions this House has made to the process of the UK leaving the EU. I thought the debate started off very well and I agree with the noble and learned Lord, Lord Goldsmith, that the right reverend Prelate the Bishop of Newcastle spoke some wise words in calling for a calm, civilised debate. I am pleased to say that everybody in this House certainly abided by her instructions. The noble Lord, Lord Alderdice, spoke extremely well on the subject of reconciliation and compromise from his personal experience and provided sound advice to both Houses as we go forward in this discussion. I pay tribute to many other contributions, from all sides of the House, including about the work of our Select Committees. The noble Lord, Lord Soley, gave some powerful examples of the excellent work of those committees.
Over the past couple of weeks, the noble and learned Lord, Lord Hope, has shared his excellent analogy of feeling as though in a holding pattern somewhere above Aylesbury. I know that my right honourable friend the Chancellor of the Duchy of Lancaster, who actually represents Aylesbury, will tell you that there are no finer patches in the country. Indeed, I noticed at the weekend that he took to the airwaves to make it clear that he has no plans to move from that lovely patch of England to a more well-known address in London. I hope the noble and learned Lord will not mind if I take his analogy a little further and say that the pilot has now identified a runway and that now is the moment of decision for the other place as to where we land.
The legally binding assurances secured by the Prime Minister mean that, in the unlikely event that the backstop is ever used, it will only be temporary, and that the UK and the EU will begin work immediately to replace the backstop with alternative arrangements by the end of December 2020. As my noble friend the Leader of the House set out earlier today, the European Council also agreed that if there is a successful vote on the withdrawal agreement this week, the date of our departure could be extended to 22 May to allow time for our Parliament to agree and ratify the deal.
However, should Parliament not agree a deal this week, the European Council has agreed to extend Article 50 until 12 April, which would then become the point at which we either leave with no deal or present an alternative plan. The Government’s position is clear that the best way in which to leave the European Union is in a smooth and orderly manner, by supporting the negotiated withdrawal agreement. The point was powerfully made by my noble friends Lord Bridges, Lord Howell and Lord Cormack, as well as, somewhat surprisingly, by the noble Lord, Lord Soley, and perhaps slightly reluctantly by my noble friend Lord Lilley and the noble Lord, Lord Butler.
The noble Lord, Lord Kerr, and others talked about extending Article 50. Our agreement with the EU provides for two possible durations, which I have just outlined. Either of these scenarios would require a change in our domestic legislation to reflect the new date.
I can confirm that the Government have today laid a draft statutory instrument under the EU withdrawal Act that provides for both of these possible agreed extensions. This will be subject to the draft affirmative procedure, so it will be debated in each House and must come into force by 11 pm on Friday 29 March. As my noble friend the Lord Privy Seal confirmed earlier, in this House, that debate will take place on Wednesday, so we have it all to look forward to again.
In response to the questions from the noble Baroness, Lady Ludford, this is to make sure that our domestic statute book reflects the extension of Article 50, which is already legally binding in international law. Not having this instrument in place would cause serious problems and uncertainty regarding the domestic statute book from 11 pm on 29 March. A large volume of EU exit legislation preparing the statute book for the moment that EU law ceases to apply has been extensively debated in this House and is due to enter into force on exit day, which is currently defined in the withdrawal Act as 29 March at 11 pm.
These regulations are necessary to bring domestic law in line with the agreement at the international level. Without this instrument, there would be a clash in domestic law, because contradictory provisions would apply to both EU rules and new domestic rules simultaneously. It is therefore vital that the instrument is approved by Parliament so that we can ensure that the statute book accurately reflects that the UK will remain a member state until at least 11 pm on 12 April.
Lord Adonis
The Minister has made a very important statement. Are we to understand that, if the third meaningful vote does not take place tomorrow, the statutory instrument changing the exit date to 12 April will be laid on Wednesday? In what circumstances will we debate a 22 May extension rather than a 12 April extension?
Lord Callanan
The statutory instrument has already been laid. It reflects the decision of the European Council, so both potential dates are included as options, depending on whether the meaningful vote is approved—not necessarily tomorrow but this week. That was the decision laid down by the Council and agreed to by the Prime Minister.
In response to the questions asked by my noble friend Lord Hailsham and the noble Baroness, Lady Ludford, no deal remains the legal default at 11 pm on 12 April, if that is where we end up. The Prime Minister was simply stating that Parliament is likely to intervene to prevent no deal, if a deal has not been agreed by then. This is in line with her comments on 26 February, when she told the House of Commons:
“So the United Kingdom will only leave without a deal on 29 March if there is explicit consent in this House for that outcome”.—[Official Report, Commons, 26/2/19; col. 166.]
Viscount Hailsham
Is my noble friend saying that, in order to secure a no-deal Brexit, the House of Commons has to approve that affirmatively?
Lord Callanan
I do not want to go further than the comments of the Prime Minister which I have just quoted. This is in line with her comments on 26 February, when she said:
“So the United Kingdom will only leave without a deal on 29 March if there is explicit consent in this House for that outcome”.—[Official Report, Commons, 26/2/19; col. 166.]
I will reply to my noble friend Lord Balfe, who called for an indefinite extension to Article 50. I am afraid to tell him that that is not possible. Any extension has to have an end date. As he will know from European law, Article 50 is a mechanism for leaving the EU, and an indefinite extension is, of course, not leaving.
Many noble Lords spoke about revoking Article 50 and mentioned the online petition and the march that we saw at the weekend. I noticed that the noble Baroness, Lady Hayter, spoke approvingly of both, but carefully avoided committing her party and saying whether Labour is actually in favour of either of those options. Indeed, if she carries on sitting on the fence, she might end up with spelks in her posterior. There is no doubt that there are clear and strongly held views on both sides of the debate. That has been clear since the referendum, when the largest democratic exercise in our history took place, with 17.4 million people voting to leave—as noble Lords are no doubt tired of me saying.
My old sparring partner, the House’s resident heckler, the noble Lord, Lord Foulkes, and indeed the noble Baroness, Lady Altmann, talked about the impressive march and petition. They were indeed impressive. Let me say, however, that we govern this country by the ballot box and by this Parliament and not by numbers on demonstrations, or indeed by internet polls. I noticed that the noble Lord, Lord Goldsmith, was very careful not to mention either—because, of course, he was a member of the Blair Government when we had a similar, and even bigger, demonstration against the Iraq war and by the Countryside Alliance—and we all know what happened as a result of those demonstrations.
The noble Lord, Lord Adonis, slightly bizarrely called on us to revoke Article 50 and then to hold a referendum. I agree with the point that the noble Lord, Lord Trevethin and Oaksey, made on this. It seems slightly strange. If we do that, what are we going to hold a referendum on? Is he seriously saying that we could revoke—in other words, tell the EU unconditionally that we are going to stay as members and then maybe, possibly, decide that we are going to leave again? I think that that was possibly one of the more ridiculous of his strange ideas.
The Government have long been clear that failing to deliver on that vote would, in our view, be a failure of our democracy. On this point I agree with the noble Baroness, Lady Deech. In response to my noble friend Lord Hailsham, it remains a matter of firm policy that this Government will not be revoking Article 50 because to do so would contradict the result of the first people’s vote, which we are committed to respecting. This Government are committed to delivering on the result of that referendum and leaving in a smooth and orderly way.
I was particularly struck by the interesting and insightful speech by the noble Baroness, Lady Smith of Newnham. She referred, for noble Lords who did not hear her, to her sadomasochistic tendencies. Now, before noble Lords get too excited, she was referring to a forthcoming book, which we will all read with great interest, on the history of European referenda, and how she thought referenda were a device for demagogues and dictators and were always a bad idea, but maybe we should have just one more of them, so bad are they. Of course, ignoring referendum results is a common feature of the European politics that she studies so closely.
A number of noble Lords, including the noble and learned Lord, Lord Hope, and the noble Viscount, Lord Hailsham, spoke about the European Parliament elections, a subject very familiar to the noble Baroness, Lady Ludford, the noble Lord, Lord Balfe, and of course myself. The Prime Minister has been clear that, should there be a further extension to Article 50 beyond 22 May, that would mean participation in the European elections. As she has said before, it is our firm belief that it would be wrong to ask the people of the United Kingdom, three years after voting to leave the EU, to then vote in the European elections.
Lord Foulkes of Cumnock
Why do the Government think it is a particular burden to undertake European elections? Is it not a positive exercise in democracy that the Minister should welcome for a number of reasons? Will he confirm that it would in fact be possible for Peers to participate in those elections?
Lord Callanan
I think I answered the first point in my statement, but I think it is possible for Peers to participate. A number of Peers have been Members of the European Parliament, but of course they need to suspend their membership of this House while they are in the European Parliament. As we do not want it to happen, we do not need to speculate further about that.
In response to the point made by the noble Lord, Lord Newby, about amendments in the Commons, I think he spoke approvingly of some of the amendments in tonight’s House of Commons vote. I assume that he was not so approving of the one last week in which they voted decisively against a further people’s vote.
Lord Hannay of Chiswick
Since the Minister has just commented on the European Parliament, could he please answer the question I asked about the way that he misled the House previously and said that there was no way on the statute book by which we could carry out the European elections, which turns out to be untrue, and which has been corrected by him in a written reply of 19 March? There is no impediment other than the unwillingness of the Government to use the laws that remain in force.
Lord Callanan
As the noble Lord has correctly observed, I have answered that question in a written response to him. Anybody who is interested can read that response.
In response to the second question from the noble Lord, Lord Newby, we cannot commit the Government to delivering the outcome of any vote held in the House of Commons, but the Prime Minister has been clear that we are committed to engaging constructively in the process and aiding the House. In the other place this evening, the Chancellor of the Duchy of Lancaster has confirmed that the Government will find time later in the week to facilitate the process if the amendment in the name of my right honourable friend the Member for West Dorset is in fact not approved.
I am grateful as always for the many contributions made in the debate. The Government are focused on finding a way for the other place to support the deal so that we can leave the EU in a smooth and orderly manner. As the Prime Minister set out, the negotiated deal before the other place seeks to deliver on the referendum, retain trust in our democracy and respect the concerns of those who voted to remain. If the other place supports that deal, we can end the uncertainty and the divisive debate, and move forward to a new future outside the EU. That is what the Government are committed to doing. I beg to move.
European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2019
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Lord Callanan
That the draft Regulations laid before the House on 29 January be approved. Considered in Grand Committee on 4 March.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, I would like to address a point made by the noble and learned Lord, Lord Hope, during the debate on this SI on 4 March. I am happy to confirm that my department consulted the Scottish Government, and sought and secured their agreement to make the proposed amendments to the Interpretation and Legislative Reform (Scotland) Act 2010, as set out in Part 3 of the regulations. My department also consulted the Northern Ireland Civil Service in the absence of an Executive, securing its agreement on the proposed amendment to the Interpretation Act (Northern Ireland) 1954, as set out in Part 4 of the regulations. Officials in the Scottish Government agreed that the regulations do not require the formal consent of the Scottish Parliament. In November 2018, my colleague, Chris Heaton-Harris MP, the Parliamentary Under-Secretary of State for Exiting the European Union, wrote to Michael Russell MSP, the Cabinet Secretary for Government Business and Constitutional Relations in the Scottish Government, regarding the proposed amendments. No concerns were raised. I beg to move.
Lord Hope of Craighead (CB)
My Lords, I thank the Minister for clarifying a point which was left unclear in the Explanatory Memorandum. It is very important that these matters, in dealings with the devolved Administrations, are properly set out and clarified. I am extremely grateful.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I agree with the noble and learned Lord, Lord Hope, on the specific point relating to Scotland. However, I wonder if the noble Lord, Lord Callanan, really wants to proceed with this SI today, given that yesterday, after the Prime Minister made her astonishing statement from Downing Street, an additional 200,000 people immediately signed up to the petition to revoke Article 50. Now more than half a million people have signed that petition. In fact, so many wanted to sign it that the website collapsed and is now being repaired so that more people can sign. In the light of that and all the other surrounding circumstances, does the Minister think it is wise to proceed yet again with this particular statutory instrument?
Lord Callanan
Unsurprisingly, the Minister does think that we should proceed with this particular statutory instrument and I am sorry that the noble Lord was not able to come along to the committee where we discussed it. If it is helpful to him, I shall set out what it actually does. Perhaps many people do believe that Article 50 should be revoked. That is not the policy of my party and as far as I know it is not the policy of his party. Were that eventuality to come to pass, although I do not think that it will, of course none of these amendments will take effect because we would not then have a leaving date. They come into effect only when we leave.
For the noble Lord’s information, let me summarise briefly what the statutory instrument does. It sets out what happens to non-ambulatory cross-references after exit day and how references made to EU legislation after exit day are to be read. The SI also amends domestic interpretation legislation to ensure that it is adequately referenced and incorporates retained EU law; that is, the new body of domestic law created by the European Union (Withdrawal) Act. Finally, this SI repeals and revokes various pieces of EU-derived domestic legislation that will become redundant on exit day. The noble Lord will notice the references to “exit day” in the regulations.
Baroness McIntosh of Pickering (Con)
My Lords, I am most grateful to my noble friend for writing to me on the concern I expressed, which was addressed in the House of Commons when MPs considered the statutory instrument, on the fact that non-ambulatory provisions had been omitted from the original European Union (Withdrawal) Act. However, his response actually missed the point that I raised with him in my letter that was expressed by the Parliamentary Under-Secretary of State, my honourable friend Christopher Heaton-Harris, in the other place. It is a very simple question: if this was omitted from the original Act, are there any other omissions of which he and his department are aware that may have to come back to the House in the short time available before 29 March?
Brexit: No-deal Preparations
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The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given in the other place by the Parliamentary Under-Secretary of State for Exiting the European Union, the Member for Daventry. The Statement is as follows:
“The Government have always been clear that leaving the European Union without a deal is not an outcome that we want. Last week Parliament voted against leaving with no deal, signalling a clear majority against this outcome. However, the legal default is that the UK will leave the EU without a deal unless an alternative is agreed. Any agreed extension does not change this fact. As well as not changing this fact, a longer extension would entail the holding of European Parliament elections in the UK, and, as the Prime Minister has stated in her letter to Donald Tusk, we do not believe that it would be in either the UK’s or the EU’s interests for the UK to hold these elections.
The Government have undertaken significant actions to prepare for a potential no-deal scenario. We have published 450 pieces of no-deal communications since October 2018, including information on reciprocal healthcare arrangements with the EU, driving in the EU after EU exit, and even how to take your pet abroad. We have contacted 150,000 businesses that trade with the EU to help them get ready for no-deal customs procedures, and held meetings, briefings and events with stakeholders across the economy, including around 300 engagements last month alone. We responded to stakeholder feedback on making sure that communications are clear by updating around 1,300 pieces of GOV.UK content, based on their input. More than 11,000 people are working on EU exit policy and programmes across government. We have launched a public information campaign, including information on GOV.UK, to help citizens and businesses prepare for leaving the European Union. TV adverts started today, while radio, press and outdoor poster advertising is ongoing. Furthermore, the Treasury has provided £4.2 billion for EU exit preparations, including for a no-deal scenario, and the Home Office has been allocated £480 million to ensure that it is fully prepared.
Getting ready for this scenario depends not only on government action but on action from a range of third parties, including businesses, individual citizens and the European Union itself. Despite government mitigation, the impact of a no-deal scenario is expected to be significant in a number of areas.
Leaving the EU with no deal is the legal default until Parliament passes a deal or agrees an alternative. We are focused on achieving that, but until it has been achieved we will continue to prepare for no deal and would advise businesses to do the same”.
Baroness Hayter of Kentish Town (Lab)
My Lords, I was about to say that the preparations are a bit like moving the proverbial deckchairs around the “Titanic”. The amount of money that the Minister has just mentioned sounds as if they were gold-plating them before they sank. We know that a no-deal exit would, at the very least, need a longer lead-in for business, which is currently in despair about all this dithering. Even with a no-deal exit business would need time to prepare for the new tariffs, checks, rules, permits and so forth. As we heard earlier today, however, that would clearly be under another Prime Minister, since Mrs May said that she would not agree to any extension beyond 30 June, and this afternoon Mr Tusk left open the possibility of a longer extension if the deal does not go through and we faced no deal.
We are in this position because the Government keep offering only either the Prime Minister’s failed deal or no deal, both of which have been rejected by the Commons. So we have to ask again: given the diplomatic and political crisis to which this Prime Minister has led the country, is it not now time to find a third route—to work to find a deal that is acceptable to Parliament and ends this no-deal farce?
Lord Callanan
Well, of course we have been endeavouring to find a deal acceptable to Parliament. We have spent two years negotiating it. But I repeat that it is the legal default, and until there is another deal in place, or another decision is taken, we will continue to prepare, because that is the responsible thing to do. I remind the Labour Party that it voted against the deal we have negotiated, and so far we have seen no constructive suggestions from the party as to what would replace it. I think Labour has said that it agrees with the withdrawal agreement, while continuing to vote against the deal.
Baroness Ludford (LD)
First, can the Minister tell us why the Government are not pursuing the route they said last week that they would follow, notably in the words of the Deputy Prime Minister, Mr Lidington. He said that if Parliament had not agreed the deal by today, a long extension would be sought. Is not the Prime Minister siding with the Brexiters and sticking with her over-the-cliff strategy, rather than trying to avoid it?
Secondly, the Government say that any agreed extension would not change the legal default of leaving the EU without a deal, presumably on 29 March. Surely if there was an extension, we would remain in the EU under EU law. If there was no SI to change the exit date, we might lack a domestic legal framework to give effect to our EU membership obligations. Can the Minister confirm whether my legal understanding is correct that since EU law is supreme over domestic law, we would still be in the EU if there is an extension?
Lord Callanan
If there is an extension, we would still be in the EU, but if we did not change our domestic law, which states that the European Communities Act comes to an end, and the legal snapshot would take place, we would clearly be in contravention of our legal obligations for being in the EU.
Lord Bridges of Headley (Con)
My Lords, given that the EU has said that it will not grant a short extension unless the deal is passed, and given that the Prime Minister has said that she is opposed to a long extension, is it therefore the case that if Parliament rejects the deal next week, the Government believe we should leave without a deal?
Lord Callanan
I think we will have to wait to see what happens next week. It remains our view that Parliament should pass the deal because we think it is the best deal available, but we will await the outcome of the Council this weekend before commenting further.
Lord Wigley (PC)
My Lords, is the Minister aware that a Paris political website is reporting that President Macron is not minded to support this deal because of the lack of clarity? That being so, we would be crashing out a week on Friday. Do the Government believe that that is practical, given what they have already said about the need for more time?
Lord Callanan
It is difficult for me to comment on rumours on the internet or on Twitter. I would be surprised if that was the case, but any EU member state can veto an extension and if one does, as I have said, the legal position under Article 50, as voted for by Parliament, and under the EU withdrawal Act, voted for by this Parliament, is that we would leave on 29 June.
Lord Robathan (Con)
My Lords, the House of Commons has twice rejected the Prime Minister’s deal, so it obviously thinks the deal is a bad deal. Does it remain the case, as it says in the Conservative manifesto, which is not yet two years old, that no deal is better than a bad deal?
Lord Callanan
We do not believe that our deal is a bad deal. We think it is a good deal, and we continue to hope that the House of Commons will agree to it.
Lord Naseby (Con)
Is my noble friend aware that the key element is the preparation by British industry and commerce? Is he further aware that I had the privilege of representing part of the East Midlands? I have spoken to industrialists, hauliers and other traders in that part of the UK. All of them many months ago realised there was a prospect of no deal. They have not waited for Her Majesty’s Government. They made those preparations, and any of us who have ever worked in industry or commerce would have done exactly the same. What they are waiting for is a decision, and they urge Her Majesty’s Government and Her Majesty’s Opposition somehow to make a decision so that they can get on and develop industry and commerce in this great country of ours.
Lord Callanan
My noble friend make a very valuable point. Business is getting on with things. Businesses are used to disruption and to learning how to make good. We have contacted about 150,000 businesses to make them aware of the possibility of no deal, but clearly we want to provide certainty and we believe that that would be best provided by agreeing the deal.
Lord Bilimoria (CB)
Does the Minister agree that, given that the House of Commons has made it very clear that no deal is not an option and that this House overwhelmingly agrees with that, if we are faced with that prospect next week, there will be no other option but for the House of Commons to revoke Article 50?
Lord Callanan
No, I do not agree with the noble Lord. This House has resolved against no deal, as has the House of Commons, but even I am getting bored of hearing myself repeat that that does not change the legal default. I do not believe that there is a majority in the House of Commons to revoke Article 50, and this Government certainly will not do so.
Lord Purvis of Tweed (LD)
My Lords, I have received the information that businesses have received and to which the Minister referred. The information from HMRC issued this morning at 8.33 am states that at 11 pm on 29 March 2019 the UK will no longer be a member of the EU. This is the basis on which businesses are asked to be prepared. The very first thing that HMRC asks businesses to have, which is necessary for them to continuing trading the day after, is an economic operator registration and identification number. The most recent official figures from the Government suggested that only one-sixth of British businesses had that number. Will the Minister update us on the current level of preparedness of British businesses? If the position is not that 100% of British businesses have that registration, if we crash out next Friday, not all British businesses will be capable of trading the day after.
Lord Callanan
I do not have the up-to-date figures in front of me, but my information is that the uptake of these ERO numbers, as they are known, has increased markedly in recent days. This applies only to businesses that would need them, which exported only to the EU and did not already export outside it. I do not have the up-to-date figures, but I know there has been a sharp uptake in applications and the granting thereof.
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.
Lord Callanan
That would depend on whether the EU was prepared to agree an extension in such circumstances. If so, we would need to table some secondary legislation in both Houses, on which there will be further opportunity for discussion in this House.
Lord Campbell of Pittenweem (LD)
My Lords, absent from this Statement is any sense of contrition or responsibility that we have been brought to circumstances in which we could crash out of the European Union in a matter of days. Do the Government not accept and understand their responsibility in this matter?
Lord Callanan
Yes, the Government accept their responsibility in this matter. We negotiated what we thought was a good deal but have so far been unable to convince the House of Commons of this.
Brexit: Article 50 Period Extension Procedure
Lord Callanan Excerpts(5 years, 1 month ago)
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The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, with the leave of the House I shall now repeat in the form of a Statement the Answer to an Urgent Question given earlier today in another place by the Parliamentary Under-Secretary of State for Exiting the European Union, the Member for Spelthorne. The Statement is as follows:
“Mr Speaker, as set out in a Written Ministerial Statement and in accordance with the Motion approved by this House on 14 March, the Government will now seek to agree an extension with the European Union. The extension process has been set out in a government paper, published last Thursday. While Article 50 does not set out how either party should request an extension, the Government believe that it would be appropriate for the Prime Minister to write to the President of the European Council.
It is highly likely, and expected, that the European Council will require clear purpose for any extension, not least to determine its length. The European Council also has to approve an extension by unanimity. With this in mind, we will look to request any extension in advance of the March European Council. It is the Government’s expectation that the European Council will decide whether to agree to any UK request at this meeting.
As soon as possible, following agreement at the EU level, we will bring forward the necessary domestic legislation to amend the definition of “exit day”. That legislation will take the form of a statutory instrument. If agreement is reached at the European Council, the statutory instrument will be laid in Parliament next week. It will be subject to the draft affirmative procedure and will need to be approved by each House. I hope that this reassures honourable and right honourable Members about the procedure that will be followed this week and next”.
Baroness Goldie (Con)
This is an Urgent Question; the Minister must respond.
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.
Baroness Ludford
My Lords, as I was saying, I think that the Speaker in the other place will tonight be a national hero for stopping this Government prolonging their manipulative games playing and making a mockery of parliamentary sovereignty. Over the weekend we heard attempts by the Attorney-General to claim that Article 62 of the Vienna convention could be invoked to get out of the backstop early and that this was a substantive change. That has been shot down by all good legal opinion.
MPs have already had two votes on Mrs May’s deal, having been permitted to reassess the information on Brexit and update their views. If the Prime Minister had had her way, it would have been three or four votes. Meanwhile, the voters are denied even one opportunity for a rethink. So is it not finally time to allow the people to have the same opportunity for review and reassessment that MPs and the Government are permitting themselves? This weekend a poll showed that almost six in 10—57% of voters—wanted that opportunity.
Any extension sought under Article 50 must be for a democratic purpose, which does not mean only the European Parliament elections. It is as clear as day that the most legitimate purpose must be for a people’s vote, and that the extension sought must be long enough to facilitate the holding of such a vote, with an option to stay in the EU on the ballot paper. It is rumoured that the Government will seek a nine-month extension. Can the Minister confirm whether that is true?
Lord Callanan
No, I cannot confirm that. I can also reassure the noble Baroness that we will not be seeking permission to hold another people’s vote. We have already had a people’s vote, and the people voted to leave. We are still committed to implementing the results of that decision.
Lord Wigley (PC)
My Lords, what happens if the European Union turns down an application by the United Kingdom for an extended period of time for Article 50 and it comes back here? Will we not then need primary legislation to avoid a cliff edge on 29 March? Do the Government have a Bill ready for that eventuality?
Lord Callanan
We will then have the choice of either passing the meaningful vote or we will leave by the normal operation of the law that this House has voted for.
Lord Bridges of Headley (Con)
My Lords, what purpose will the British Government tell the European Union that a long extension would fulfil? What is the precise purpose that the Prime Minister will say she needs this period for?
Lord Callanan
This will be something the Prime Minister will want to address in her discussions with the European Council. The reason we are requesting this is the request by the House of Commons in the vote it had last week.
Lord Browne of Ladyton (Lab)
My Lords, I assume that the Government were aware that the other place had a convention dating back to 1604 that you could not bring a proposition substantially the same as one that had already been decided in the same Session of Parliament. If that is the case, why is the Solicitor-General going about today saying that the House of Commons Speaker’s restatement of that convention—that is all he did—has generated a “constitutional crisis”? Is it not the Government’s intention to get the House of Commons to breach its own convention repeatedly until they got their preferred deal through the House of Commons that generated the constitutional crisis, not the restatement of the convention?
Lord Callanan
I am not aware of the Solicitor-General making those comments. I have not seen them; I have been briefing for this session and listening to the debate in the House of Commons. The procedures of the House of Commons are a matter for the Speaker and the property of the House, and nobody is in any doubt about that.
Viscount Waverley (CB)
Can the Minister confirm whether any extension of Article 50 could be rescinded on the same terms as the original Article 50 was applied for?
Lord Callanan
If the noble Lord is asking whether it can be withdrawn once it has been agreed, I do not think so. We are allowed to apply for an extension, and it has to be agreed unanimously. Once that is done, we will need to amend the appropriate legislation in this country, which is the EU withdrawal Act.
Lord Dobbs (Con)
My Lords, perhaps I might ask my noble friend the Minister—and he is a friend—a gentle but serious question. How can he expect noble Lords from these Benches to support the policy that is now being advocated, which the Government themselves have consistently opposed and repeatedly promised to never bring before this House?
Lord Callanan
My noble friend makes a very good point and he knows I have some sympathy with his view. However, the will of the House of Commons was clear; it refused to pass the withdrawal agreement that would have resulted in us leaving in a satisfactory manner, and it has requested the Government to seek an extension to Article 50. That is what we will do.
Lord Davies of Stamford (Lab)
My Lords, the Government have had two and a half years to resolve this matter. They have spectacularly failed to do so, in such a way that we have now become a byword throughout the world for incompetence at the highest level of government. Parliament has now been trying to solve the problem for a few weeks, and has so far failed to do so. Is it not time to go to the final stage—the one that will produce the highest degree of legitimacy for a final decision—and ask the British people, knowing all that we now know about the conditions that would apply if we had an arrangement with the European Union, and so much more than any of us knew in 2016? Is it not time to let the British public take a considered and final decision?
Lord Callanan
I refer the noble Lord to the answer I gave earlier to the noble Baroness, Lady Ludford. I do not agree that there should be a further people’s vote; we have already had a people’s vote and we should implement that one first.
Lord Tugendhat (Con)
My Lords, the Minister is of course quite right to say that a majority of people voted to leave the European Union. Does he not therefore think it rather ironic that it is, by and large, Members of Parliament who are strongly in favour of leave who are doing so much to undermine the Prime Minister’s plans to get us out of the European Union on the date that the Government promised and now look as though they cannot deliver?
Lord Callanan
There are indeed many ironies in this process, and that is one of the largest.
Challenges to Validity of EU Instruments (EU Exit) Regulations 2019
Lord Callanan Excerpts(5 years, 2 months ago)
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Lord Callanan
That the draft Regulations laid before the House on 12 February be approved.
Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A)
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, I am grateful for the opportunity to be here today to discuss the regulations presented before you. These regulations are part of the Government’s wider programme of secondary legislation before exit day to ensure that the UK’s legal system continues to function effectively when we leave the European Union.
The principal aim of these regulations is to ensure the effective continued delivery of justice as we leave the EU. It is clear that in separating our legal systems we must absolutely make sure that those who have sought justice through our domestic courts are not adversely affected by our exit from the EU. These regulations will guarantee that validity challenges originating in our domestic courts before exit will continue to be heard and that claimants can be assured that domestic courts will be able to hear them, independently of the Court of Justice of the European Union. These regulations would take effect when EU law ceases to apply to the United Kingdom. For example, if an implementation period is agreed, they would take effect at the end of the implementation period.
I will take a moment to remind noble Lords of the legal mechanics of validity challenges as they currently stand, before going into the details of what these regulations will change once we leave the EU. The right to challenge whether or not a law was made “validly” by the EU is currently set out in the Treaty on the Functioning of the European Union, referred to as the TFEU. The grounds are set out in Article 263 and they are: lack of competence; infringement of an essential procedural requirement; infringement of the treaties or of any rule of law relating to their application; or misuse of powers. In effect, such challenges are the EU equivalent of judicial review. It is important for noble Lords to be aware that rulings in validity challenges are always given by the CJEU. National domestic courts, both in the UK and other EU member states, do not have the legal jurisdiction to make judgments on these cases.
There are two ways in which cases make their way to the CJEU for judgment. In the first instance, claimants may bring their cases directly before the CJEU. Let me be clear: these regulations do nothing to amend or remove that right for UK nationals who may wish to pursue that route of challenge after our exit. Any UK national who complies with the relevant requirements in the TFEU and who wishes to take a case to the CJEU to challenge a relevant EU law on these grounds will continue to be able to do so after exit. However, post-exit CJEU judgments on validity will not of course apply to the UK.
I would like to highlight that the majority of challenges brought in this manner directly to the CJEU by UK-based claimants are against individual decisions that affect one business or individual, and are not generally against legislation of general effect. My officials have identified alternative domestic mechanisms for challenge post exit in the majority of these cases.
The other way in which validity challenges come before the CJEU is via the national domestic courts. During proceedings, questions of validity may arise, and where and when they do—unless judges consider that the question is so obvious that no reasonable doubt is left—national courts must pass these questions on to the CJEU for judgment. This is done via the preliminary reference mechanism. After judges have sent off for a ruling, the domestic case is put on hold until the CJEU makes its judgment. In legal parlance, the case is stayed or “sisted”—not “sistered” but “sisted”.
Baroness Hayter of Kentish Town (Lab)
My Lords, I also thank the Minister for introducing this. As the noble Lord, Lord Beith, said, it is to correct something in paragraph 1 of Schedule 1 to the 2018 Act—which was perhaps a slightly erroneous judgment made at the time. It affects only a handful of cases, but nevertheless we certainly think that the ability to bring those cases is important.
I have a few questions. One arises from the last point made by the noble Lord, Lord Beith. My assumption is that this is a no-deal SI. Can the Minister confirm that, if we get a deal with a transition period—for the sake of this argument, if we get a deal there is bound to be a transition period—then the CJEU will, once we have amended the 2018 Act in the withdrawal and implementation Bill, have a continuing role in these matters? Can he also confirm that this is a no-deal SI, and that no deal is the only situation in which this SI would have a role?
If we have a deal, will paragraph 2.1 of the Explanatory Memorandum not be a bit misleading? It suggests that there will be no role for the CJEU. In a deal situation, there would be a role for it, not just in the transition but afterwards, because of the provisions concerning EU citizens’ rights. Can the Minister confirm that this SI would not be needed if we have a deal and a transition period? In fact, now that the House of Commons has voted against us leaving without a deal, perhaps the Minister could explain in what circumstances this SI would actually be needed. Is it correct that this SI would not be needed if we have a transition period?
My second question is absolutely not a trick question; it is asked out of my own ignorance. As the Minister explained, the courts will be mandated to inform the relevant Government of a case coming before them. Can the Minister inform the House whether there are any other instances in which any of our courts have an obligation to inform the Government of proceedings that are started before them?
Paragraph 10.7 of the Explanatory Memorandum recognises that we could find ourselves in the position—this point which has just been touched on—where some former EU legislation which has subsequently been ruled invalid by the CJEU remains on the UK statute book after we have left. Can the Minister outline how either his department or a successor department would monitor future CJEU rulings after Brexit to keep abreast of any such rulings which might be relevant to the UK statute book?
Finally, there is the important issue of compensation, which was only slightly touched on by the noble Lord, Lord Beith. The 2018 EU withdrawal act makes it clear that, after exit day, there is no right to damages under the current Francovich rules, except during a two-year grace period for cases that relate to events that occurred before exit day. Under the regulations being considered today, should our domestic courts find that any of our retained law is invalid under the sort of terms outlined, would there be a similar right to damages for two years similar to those allowed under the 2018 Act? That covers cases in which the event started before exit day, but even for cases which are pending on exit day—I think there are three at the moment—if it were found that those laws were invalid, would a Francovich-type compensation be available?
Lord Callanan
I thank the noble Baroness, Lady Hayter, and the noble Lord, Lord Beith, for their contributions, and I pay particular tribute to the noble Lord, Lord Beith, and the noble Baroness, Lady Taylor, who is not in her place at the moment, for the interest that they have taken in this important matter. We are extremely grateful for their contributions and for their engagement with officials—I know that the noble Lord has taken a close interest in this and I thank him for that.
As I set out in my opening statement, these regulations aim to ensure the effective delivery of justice as we leave the European Union. The regulations will do this by giving domestic judges a temporary jurisdiction to rule on validity challenges to EU laws in domestic courts after exit for cases that have begun before exit.
I will now deal with the questions. The noble Lord, Lord Beith, made some extremely valid points on what might happen if, after exit, the CJEU rules that EU legislation was invalidly made. Would this invalid legislation remain on the UK statute book? As he acknowledged, the short answer to his question is yes. Decisions made by the CJEU will not affect retained EU law. Even if the CJEU makes a decision to void regulation after exit day, as he pointed out, that law would remain on the UK statute book as retained EU law. This is because the EU withdrawal Act takes a snapshot of EU law as it stands on exit day. All law on the UK statute book at that point in time will be valid, as a result of it being made law under the EU withdrawal Act. After exit, it will be for Parliament to decide if and how to diverge from EU law.
I take the noble Lord’s point that, although unlikely, this may result in a law being declared void in European Union countries but not declared void in the UK. It is just a matter of policy disagreement. We would prefer that, after exit day, the Court of Justice of the EU is not given the power to strike down what will in effect be UK law at that point. However, I am sure that if such a circumstance arose, Parliament would want to take a look at the case, see if similar provisions should be made in the UK and see if the law should be changed or deleted.
In response to the noble Baroness, Lady Hayter, I can confirm that, in the unlikely event of this happening, we will of course closely monitor all pending cases that come back to Parliament with potential changes to any retained EU law. Building on that response, the rulings of the CJEU will not be binding on the UK. It would be for Parliament to decide whether to seek changes to mirror CJEU judgments.
The noble Baroness also asked about damages. Damages are already determined by UK courts. Nothing in this SI changes that scenario.
To answer both the noble Lord, Lord Beith, and the noble Baroness, Lady Hayter, the SI will be required in both a deal and a no-deal scenario. Therefore, if we agree a deal and pass a withdrawal Act, the effect of the SI will be delayed until the end of the implementation period.
The noble Baroness, Lady Hayter, also asked a good question about whether there are other instances where the courts must notify the Government of cases that are before them. The courts must issue a notice to UK Ministers and Ministers from the devolved Administrations in cases where it plans on making a declaration of invalidity. This is similar to the requirement under Section 5 of the Human Rights Act, when domestic courts issue declarations of incompatibility under that Act.
Without these regulations, no court in the UK would have the requisite jurisdiction to consider the validity of an EU instrument. Domestic courts would therefore find themselves at an impasse where a ruling on validity is simply not available, either domestically or from the CJEU. This would in turn prevent the effective delivery of justice. These regulations are intended to avoid such a clearly undesirable scenario. As I said in my introduction, my department has worked closely with the Ministry of Justice to make sure that the regulations are workable. The judges and Her Majesty’s Courts & Tribunals Service are well aware of these changes.
As I also said, these regulations provide that a Minister of the Crown, a Scottish Minister or a Welsh Minister or a Northern Ireland department may become a party to any cases concerning validity at any point. There are no impediments for the devolved Administrations to do so; they need only give written notice to the court. Again, this is in recognition of the fact that they may have an interest in the outcome of the case.
Although the number of validity challenges will be extremely small, it is none the less vital, as the noble Lord, Lord Beith, pointed out, that we ensure that justice can still be delivered in the few cases in which these regulations might apply.
Brexit: Date of Exit
Lord Callanan Excerpts(5 years, 2 months ago)
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Baroness Smith of Basildon (Lab)
I beg leave to ask a Question of which I have given private notice.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
The Government have today deposited in the Libraries of both Houses a document making clear the necessary steps required to extend Article 50. The position of the House of Commons with regards to an extension of Article 50 will not be clear until the conclusion of the debate this afternoon.
Baroness Smith of Basildon
My Lords, we are back to that parallel universe I referred to a few minutes ago. I ask the Minister about a no-deal Brexit and his answer is about the extension of Article 50.
This has been an extraordinary parliamentary week. On Tuesday, the Prime Minister was again defeated on her unchanged agreement with the EU. Last night, MPs rejected leaving the EU without a deal, and the Prime Minister has now to accept that she does not have the full support of her Government, or even her Cabinet. This House has also emphatically rejected no deal. Yet, in an extraordinary, intransigent speech which followed the defeat in the Commons, Mrs May appeared to want to ignore Parliament.
We are spending a great deal of time, energy and money—millions, if not billions of pounds—on preparing for a no-deal failure. One parliamentary recess has already been cancelled, and there is serious talk of longer, later and more sittings—including on Saturdays. There are even reports that the Prime Minister intends to run down the clock further to try and get her twice-rejected deal through. She is acting like the cruel parent who, when the child will not eat its dinner, serves up the same plate of cold food day after day until they are forced to accept the unwanted, the unpalatable and the dangerous.
My question, which I would have expected the noble Baroness the Leader of the House to answer, but which I put to the Minister, is: in order to give effect to what Parliament has now agreed, and to end this dreadful waste of resources and the irresponsibility that goes with it, when will the Government bring forward the necessary legislation to prevent a no-deal exit?
Lord Callanan
As the noble Baroness is well aware, since I have repeated it many times in this House—noble Lords will groan and roll their eyes—the legal position, until it is changed, is that we leave on 29 March. The Government have said that if the House of Commons wishes to vote for an extension, we will table the necessary affirmative SI, but we cannot do that until it has been agreed by the EU Council. We cannot just unilaterally extend Article 50; it has to be agreed with the Council. We will do that if an extension is agreed by the House of Commons and by the European Council.
Lord Newby (LD)
My Lords, given the decision by the House of Commons yesterday to rule out no deal, will the Government now withdraw from the Order Paper all the statutory instruments which would implement no-deal provisions, on the basis that they are a complete waste of parliamentary time?
Lord Callanan
No, we will not. The reason—even I am getting bored of hearing myself repeat it—is that the law of the land, as currently constituted, says that we leave the EU on 29 March. Article 50 says that in European law, which the Liberals want us to continue experiencing, and British domestic legislation says the same.
Lord Cormack (Con)
Is my noble friend aware whether, as I have heard, certain members of the ERG are communicating with individual Governments within the European Union, seeking to persuade them to apply a veto if we request an extension? If that is happening, has he heard of it and what is his view of it?
Lord Callanan
I thank my noble friend for his questions. I have heard lots of things about lots of people communicating all sorts of things, including members of the Labour Party going to Brussels and talking to the negotiators and ex-Prime Ministers doing the same. I am sure that many Members of Parliament are making their views heard loudly and clearly to all sorts of actors, but I am also sure that member states will take their own view of the situation.
Lord Hannay of Chiswick (CB)
Does the Minister not recognise that there is a good deal of confusion about the state of the statutory instruments being brought forward on 29 March? He has answered that question, but could he perhaps correct the impression that he and his noble and learned friend Lord Keen gave the House? The legislation we have which would enable a European election to take place here on 23 May has not in fact been repealed; that is the position of the Electoral Commission.
Lord Callanan
The noble Lord is correct, in that the legislation on European elections would have been abolished through statutory instruments laid under the EU withdrawal Act. I do not think those instruments have been tabled yet but if they were then they would not take effect, as many of those SIs do not, until our exit date. So if our exit date is postponed, they would of course take effect at that date.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I am surprised that the Leader of the House is not replying to this Question, since it covers a wide variety of things. Can the Minister confirm that he and other Ministers speaking from the Dispatch Box speak on behalf of the whole Government, not just whichever department they are associated with? Is it not clear to him, the Leader of the House, the Chief Whip and everyone concerned that there is absolutely no way that we are going to exit the European Union at the end of this month? Irrespective of what happens in the other place, there is no way that the legislation can get through. Will the Minister at last admit that and accept reality—and accept the financial penalty that he is going to incur?
Lord Callanan
I am sorry that my answering questions in the House is such a disappointment to the noble Lord but I am sure he will get to hear from the Leader in due course. I can only repeat that the legislation which this House has passed says that we leave on 29 March. That is what Article 50 says. If there are votes in the debate taking place in the other place, that may change but at the moment that is the legal position. The noble Lord may shake his head but those are the facts. It is what we have legislated for, in this House and the other place.
Lord Howell of Guildford (Con)
My Lords, speaking for any party at the moment is a bit tricky. But as Her Majesty’s Opposition have ruled out no deal—personally, I agree with them—and the only available deal, and given that we know that there is a requirement that if a delay is to be granted it has to be for a purpose, with a strategy or an aim, would it not be wonderful just to have an inkling of what Her Majesty’s Opposition are proposing for the future, so that we at least know what kind of support we are going to get?
Lord Callanan
My noble friend makes a very good point with the benefit of his experience. The Labour Party are fond of telling us what they are against. What they have not done is tell us what they are in favour of. Ultimately, the other place will need to decide what it is actually in favour of, rather than what it is against.
Lord Bowness (Con)
My Lords, in view of the chaotic state into which the parliamentary process concerning Brexit has been reduced, will the Government confirm that, in the event of an extension of Article 50 being sought, or indeed in any event, they will belatedly reconsider the red lines which have caused us to be in this position? We have adhered to them stubbornly and with no regard to the disastrous position to which we are heading in these negotiations. It is critical that the Minister indicate that we now have an open mind on our position for the future.
Lord Callanan
The difficulty with my noble friend’s point—we have set out our position on the terms of negotiations very clearly—is that we have negotiated a withdrawal agreement which, in our opinion, is the best deal available and in the EU’s opinion is the only deal available. Saying that you do not like no deal is not a valid course of action. If you want to leave with a deal then you either need to vote for this deal or tell us what other deal can be negotiated, which will require support. That is what the Opposition and those who are opposed to Brexit have not done.
Lord Campbell of Pittenweem (LD)
My Lords, in the light of last night’s events, what importance do Her Majesty’s Government now attach to the doctrine of Cabinet responsibility?
Lord Callanan
The doctrine of Cabinet responsibility is, of course, extremely important. Those Ministers who voted against the Government last night have resigned. It is personally disappointing that some other Ministers did not support the Government.
Brexit: Non-Disclosure Agreements
Lord Callanan Excerpts(5 years, 2 months ago)
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Baroness Wheatcroft
To ask Her Majesty’s Government how many companies have signed non-disclosure agreements with them in relation to preparations for the United Kingdom’s withdrawal from the European Union.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, government departments make use of non-disclosure agreements when structuring engagement with businesses or other organisations on preparations for leaving the EU. They are a common component of contractual arrangements that are used to protect the commercial considerations of the parties involved or to protect sensitivities around the development of government policy. With regard to my department, DExEU, as of mid-January there were seven NDAs in place covering standard commercial contracts.
Baroness Wheatcroft (Con)
My Lords, I thank my noble friend the Minister for his response. The Government have been rightly critical of the use of NDAs in some cases that have come to light recently. It is crucial that Parliament and the public should have access to all relevant information about the potential costs and risks of Brexit, so could my noble friend assure the House that the NDAs the Government have signed are not keeping important data out of the public domain? At such a pivotal time for the country, business should not be gagged.
Lord Callanan
I totally agree that business should not be gagged. Many businesses have rightly spoken out with their opinions on Brexit, both for and against. But we have been extremely open about no deal and the costs of Brexit. We published 106 technical notices and there has been extensive debate. A lot of economic analysis has been published. Nobody can say that they have not had all the relevant information.
Lord Howarth of Newport (Lab)
My Lords, if the Government subscribe to the democratic principles of transparency and accountability, should there not be a rule that Governments and their agencies do not enter into non-disclosure agreements where public interests are material? Should not pleadings for commercial confidentiality be treated with great scepticism?
Lord Callanan
I agree with the noble Lord that it is important for the Government to be as transparent as possible, but some of these contracts cover things such as payroll services. They are not an attempt to gag businesses or anything like that. The Comptroller and Auditor-General, the head of the National Audit Office, gave evidence to the Exiting the EU Committee in the other place that the use of NDAs in these government contracts was entirely appropriate.
Lord Lilley (Con)
My Lords, are the Government not in rather a strange position of preparing to ensure that we can leave with no withdrawal agreement on 29 March while playing down and hiding what they have done to achieve that and what has been achieved on a reciprocal basis between ourselves and the EU—that planes may fly and hauliers will have licences et cetera? Will the Minister publish a complete list of such arrangements to reassure the House, the country and the other place that we can leave smoothly on 29 March without a withdrawal agreement if none is available?
Lord Callanan
I know that the noble Lord takes a close interest in these matters, but it remains the case that we do not want to leave with no deal. We do not think that is an advantageous situation. There will clearly be a lot of turbulence if that happens. But we have been open about the consequences. The problem is that the EU will not engage with us on many of the technical preparations necessary because it takes the view that it has negotiated a withdrawal agreement.
Baroness Kramer (LD)
My Lords, I think the Minister will find that many in this House have had conversations with businesses that have said to them directly that they cannot describe the impact of Brexit on their business to politicians or the public, or speak out openly, because they are bound by NDAs that they have signed with the Government. Will he go back and look again at these NDAs in some detail, perhaps himself, and put some pressure on his lawyers, because it is very clear from all the conversations that eventually it will surface and become public that these are not just covering narrow, commercially sensitive issues? They are stretching far more broadly because the Government prefer to keep so many issues secret when they should be transparent.
Lord Callanan
I am afraid I do not agree with the noble Baroness. She cannot expect me to comment on hearsay or private conversations she might have had. If she gives me specific examples of where agreements have been used inappropriately, I will of course look at them.
Baroness Symons of Vernham Dean (Lab)
My Lords, the noble Baroness, Lady Wheatcroft, asked about NDAs across the whole of government. The Minister, speaking from the Dispatch Box in this House, answers for all of government. He has given us the answer only for his department. Could he answer the noble Baroness’s Question in full and tell us what the numbers are across the whole of government?
Lord Callanan
I would love to answer the noble Baroness, but I simply do not have that information. She will have to ask other government departments what NDAs they have in place.
Lord Callanan
I can only give the information that I have in front of me; I asked my department how many NDAs were in place and what they were. I will look at the situation and respond in writing if that is appropriate.
Baroness Smith of Basildon (Lab)
I have to say to the Minister that he answers for the whole Government when he speaks from the Dispatch Box. If his department cannot find the information, it should ask other departments. Sometimes, when I listen to his answers, I think that there is a parallel universe: there is the Prime Minister and some of her Ministers and then there are the rest of us. Most of us saw what happened in the House of Commons again last night, when MPs ruled out a no-deal Brexit, yet here the Minister is talking about no-deal Brexit non-disclosure agreements. It is hard to understand the justifications for the secrecy the Government are insisting on. Picking up on the point made by the noble Baroness, Lady Kramer, does the Minister understand and share the frustrations of businesses and sectoral bodies subject to these gagging orders, which in many cases are deeply unhappy with the direction of travel but ultimately are unable to speak out on such a crucial issue?
Lord Callanan
Again, the noble Baroness is referring to hearsay conversations that she may or may not have had. They are not gagging orders but standard non-disclosure agreements. These are not unusual; they were used extensively throughout periods of Labour Governments as well. Many businesses are speaking out with their opinions on Brexit. Everybody has an opinion on Brexit. Believe me, I get a lot of contributions, a lot of letters and a lot of emails, from businesses and individuals, on the subject of Brexit. Nobody is being gagged.
Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union
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Lord Callanan
That this House takes note of further developments in discussions with the European Union under Article 50 of the Treaty on European Union.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, this debate allows us the opportunity to debate further the discussions with the European Union under Article 50 of the Treaty on European Union. This House has played a significant role in shaping the process for the UK’s exit from the EU and will continue to do so. The number of speakers on the list is testament once again to the extensive knowledge and experience this House has to contribute. The debate provides a significant opportunity to inform the debate ahead of the meaningful vote in the other place tomorrow.
The Prime Minister has long said that it is in the interests of both sides—the UK and the EU—to leave with a deal. That is what we have been striving to achieve. This afternoon in the other place, the Parliamentary Under-Secretary of State, the Member for Worcester, will set out the latest position in response to an Urgent Question from the leader of the Opposition. Following the meaningful vote in January, the Government have worked hard to secure the reassurances the other place required. As well as changes to the backstop, we have been working on a number of areas to secure support for the withdrawal agreement.
As my right honourable friend the Prime Minister has said, she, alongside my right honourable friends the Secretary of State for Exiting the European Union and the Attorney-General, and other Cabinet colleagues, has been working hard to find a solution to the backstop to ensure that it cannot be indefinite. The discussions with the EU are ongoing as I speak and I am sure that noble Lords will understand that I cannot go into the detail while these sensitive discussions are continuing at this time; nor, of course, would I want to comment on the huge amount of speculation and hypotheticals that are currently doing the rounds on social media. As soon as there is a conclusion to the negotiations, we will ensure that Parliament is updated at the earliest possible opportunity.
Over the past few days the Prime Minister has been speaking to fellow leaders. Yesterday evening she spoke to President Juncker by phone. The teams are continuing to talk throughout today. It remains our intention that the meaningful vote will take place in the other place tomorrow, Tuesday 12 March, and that the Motion will be tabled ahead of the debate. The other place will have the option to back the Brexit deal or to risk a delay that would mean months more of arguing about Brexit, prolonging the current uncertainty. It is important that we deliver on the result of the referendum and deliver this deal that works for the whole of the United Kingdom. However, the Prime Minister remains committed to the Statement that she made to the other place with regard to the votes that would follow, should the other place not support the deal tomorrow.
The Government remain committed to delivering a smooth and orderly exit from the EU and continue to progress with extensive work to put in place much of the legislation, both primary and secondary, required for our exit from the EU. Noble Lords are playing a crucial role in ensuring that the statute book is ready for exit day, including by providing appropriate scrutiny to legislation. It would be wrong of me to discuss legislation without paying tribute once more to the work of the Select Committees of the House, whose reports, insight and expertise have been most valuable at every step of the process since the result of the June 2016 referendum. In particular, I am grateful to the chairs of the scrutiny committees, the noble Lords, Lord Trefgarne and Lord Cunningham, for their extensive work. Their reports have been excellent. They have made effective use of the temporary additional resources the House wisely gave them for this task, and we all remain in their debt.
As part of our preparations for exit day, the Government are working hard to ensure that the necessary SIs are in place ahead of exit day. Many of these ensure that on exit day there is continuity for citizens and businesses. I am aware that noble Lords have asked about SIs in different exit scenarios. I can confirm that should we no longer require certain SIs after exit day if a deal is secured, the EU withdrawal agreement Bill—WAB—will make provision to defer the SIs that are not required at exit day. We expect that this would be until the end of the implementation period. For the information of noble Lords, as of today, we have laid 497 and completed 312 of the SIs required before exit day.
It would be most unprecedented to have a debate in this Chamber on the UK’s exit from the EU without the question of a second referendum arising at some point. Let me say for the avoidance of any doubt that the Government’s position has not changed and we are not considering a second referendum. The referendum in 2016 was the biggest democratic exercise in our history and the Prime Minister has been clear that the will of the British people must be respected and delivered.
Noble Lords often laugh when I say this, but once again I greatly look forward to hearing the contributions of the many noble Lords signed up to speak today. The rest of the week will no doubt see this matter develop further in the House of Commons. That does not mean that this House does not have a role and, at the risk of repetition, I think that today’s debate gives us all a valuable opportunity to take further stock. My noble and learned friend Lord Keen stands ready, as ever, to address any key points that are raised during the debate when he closes later on. I beg to move.