European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Lord Elystan-Morgan]

I support and agree with everything that has been said. After all, devolution is not a dainty little sympathy; it is a fundamental right accepted as part of the constitutional inheritance of all the people of the United Kingdom. On that basis, the words spoken are the very heart of truth and common sense.

[Baroness Goldie (Con)]

I thank noble Lords for their contributions to the debate. I also thank the noble and learned Lord, Lord Wallace of Tankerness, for speaking to the amendments tabled by the noble Lord, Lord Foulkes. I appreciate the intention behind the noble Lord’s Amendment 311 in seeking to apply a “sunset” to the Clause 11 arrangements. I recognise the aim to provide a clear guarantee that those areas in which frameworks are not needed will pass into devolved competence. In fact, the effect of Amendment 311 would no longer be required if we take the kind of approach adopted in the amendments to Clause 11 that we debated last week. The noble and learned Lord, Lord Wallace, was good enough to acknowledge that.

As we indicated on our amendments, we think it preferable that those areas where we know that frameworks are not required will never be subject to the constraint at all. I hope your Lordships will also be reassured by the proposal of a power to repeal the effects of Clause 11 to make clear that it is a temporary means to limit competence where we are considering the need for a framework, not an ongoing mechanism for altering that devolved competence. We have proposed an obligation to report to Parliament every three months on the progress we had made towards repealing the restrictions and implementing the new arrangements where needed. As has been acknowledged, this will increase the impetus behind the frameworks processes. Following last week’s debate on Clause 11 and the extent to which this interconnects and relates, I urge the noble and learned Lord not to press Amendment 311.

I will briefly address the amendment in the name of the noble Lord, Lord Wigley, which would enshrine in law a requirement for the Government to seek legislative consent Motions from the devolved legislatures. We have said, and I shall say again, that we want to make a positive case for legislative consent for this vital piece of legislation and to work closely with the devolved Administrations and legislatures to achieve that. We have put very considerable effort into securing agreement on the changes to Clause 11. I hope that the amendments we tabled for debate last week show the extent to which we have moved to address the concerns raised by the clause. I want to reassure the noble Lords, Lord Wigley and Lord Morgan, about that.

I regret that we have not yet been able to secure that agreement. It is important to remember that we have sought legislative consent for the Bill. The amendments that we have tabled and the ongoing dialogue are reflections of the Government’s sincere intention to secure that consent. I hope that, with good sense around the table, agreement can be reached. The noble Lord, Lord Morgan, said eloquently that we do not want to turn our backs of 19 years of devolution history. Having been part of that history in Scotland, I could not agree with the noble Lord more.

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[Lord Campbell of Pittenweem (LD)]

What is the Government’s view of the proposed continuity legislation, from both Wales and Scotland?

[Baroness Goldie]

My understanding is that that legislation has been enacted by the devolved Administrations for what they perceive as a necessary protection of their positions. The Government hope that we can supersede that legislation by coming to good sense around the table and hammering this out—which I think is what all parts of the United Kingdom want.

[Lord Wallace of Tankerness]

My Lords, I thank all who have taken part in this short but important debate, and the noble Baroness, Lady Goldie, for responding. I think it fair to say that in all our debates that have touched on devolution, reference has been made to the importance of securing the agreement not just of Ministers but of the devolved legislatures in Scotland and Wales. One prays for the time when it will be the case also in Northern Ireland. That was reflected in the first report of the Scottish Affairs Select Committee of this Session, which recommended that,

“the UK and Scottish governments continue their efforts to secure agreement on those clauses of the Bill which affect devolved areas of responsibility”.

It is important that we reiterate the importance of that. The Minister has indicated that the Government are seized of that, but there is no harm in reinforcing it. She referred to the import of the Sewel convention into both the Wales Act 2017 and the Scotland Act 2016. As we know from the decision in the Miller case in the Supreme Court, the convention is just that: it is a convention and does not have the force of the law. It is important that we reiterate the need to get agreement.

On the proposed sunset clause to which I spoke on behalf of the noble Lord, Lord Foulkes, the Minister seemed to suggest that, once the new proposals come through, this might not be necessary. I tabled a very similar amendment last week, which I had thought of attaching to the amendment brought forward by the noble Lord, Lord Callanan. When I discussed it, I was assured that it was not necessary because, due to the way in which the Bill was set out, it would not have been superseded by pre-emption even if the noble Lord’s amendment had been accepted, so such a clause is still pertinent. It is important that some time limit be set, even for establishing the frameworks. The noble and learned Lord, Lord Mackay, made some interesting and constructive proposals as to how the frameworks might be achieved. While the return of many of the powers at the so-called intersects would be pretty imminent on exit day, a number would still have to be resolved. Therefore, I encourage some positive thinking with regard to a timeframe within which that might be done. On that basis, I beg leave to withdraw the amendment.

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[Lord Newby (LD)]

My Lords, as a co-signatory to Amendments 334 and 343, I support them and the thrust of the debate. It can be summarised in a sentence from the noble Lord, Lord Hannay, who said that it was neither necessary nor desirable to have 29 March in the Bill, which was why that date was not in the Bill in the first case.

Noble Lords on different sides of the argument have suggested why there may be a need to be flexible at the end. Can the Minister help me to understand the draft agreement, published last week, which seems to admit of one of them? In Article 168—entry into force and application—a paragraph is printed in yellow, which means that the negotiators have agreed on the policy objective. So, the Government have agreed the following policy objective:

“This Agreement shall enter into force on 30 March 2019. In case, prior to that date, the depositary of this Agreement has not received the written notification of the completion of the necessary internal procedures by each Party, this Agreement may not enter into force”.


That seems to admit of two possibilities. One is that there is a slight delay until the depositary has received the necessary notification of all parties to the agreement, including the European Parliament as well as this one, having gone through those procedures. The other potential meaning—I cannot believe that it is the meaning but it is not clear—is that if by, say, 1 April the European Parliament has not notified its agreement to the agreement, the agreement would fall. I cannot believe that that is the meaning. I thought that the meaning must be that if the formalities of the parties of the agreement have not been completed, the agreement is in abeyance until they have been. It raises the interesting subsequent question as to how the two-year period in Article 50 is interpreted. Can the Minister attempt to explain that position and what the Government understand by the meaning of Article 168 to me?

The bigger point I seek to make is that there are a number of reasons why it may be in everybody’s interests to slightly change the date on which our exit is triggered. The way in which the Bill has been amended does not facilitate that process and it should therefore revert to its original drafting.

[Baroness Goldie]

My Lords, I first thank all noble Lords who have participated in an interesting and very spirited discussion. I know that the issue of exit day in the Bill is important to many in this House. That was certainly the case in the other place, where—as a number of your Lordships have mentioned—multiple alterations were made to the original drafting of the Bill. I hope noble Lords will indulge me in a bit of scene-setting.

Initially, the Bill gave full discretion to the Government on the setting of exit day for the purposes of the Bill, subject to no parliamentary scrutiny procedure. It was also technically possible for Ministers to set multiple exit days for different purposes. Indeed, the noble Lord, Lord Hannay, referred to that. For some parliamentarians, this mechanism was not acceptable because it gave rise to uncertainty as to whether the exit day appointed by the Bill would correspond to the day that the UK actually leaves the EU at the end of the Article 50 process, which had always been the Government’s intention. Therefore the Government brought forward amendments to set exit day in the Bill as 11 pm on 29 March 2019. That was to bring the Bill in line with the calculation of the estimated date and time of exit under Article 50.

However, as the Bill progressed through the other place, some Members highlighted that our first set of amendments did not fully represent a technical alignment with our legal options under international law. To align fully, we would have to provide a mechanism for exit day in the Bill to change, corresponding to the detail of Article 50.3 of the Treaty on European Union. Let me make clear to your Lordships that this is a mechanism that the UK does not have any intention of using. None the less, this anomaly had been highlighted, so a technical amendment to the Bill was tabled that allows the Government to change exit day as defined in the Bill, but only if the date at which the treaties cease to apply to the UK changes from its currently envisaged moment on 29 March 2019.

Any such regulation changing this date in the Act would be subject to the affirmative procedure. I stress that the Clause 14 power does not have access to the “made affirmative” procedure, so the normal timetabling process would apply to any regulations made to amend exit day. That is where we are now with the drafting of the Bill, and I suggest to your Lordships that there are a number of reasons why this position should not change.

First, this issue has clearly been scrutinised heavily in the other place. Indeed, it was possibly one of the most politically salient areas of the Bill, and certainly one of the most amended. Secondly, a sensible, mutually agreeable position was reached in the other place. It was not earmarked as an issue to come back to; it was a settled policy position and it commanded a comfortable majority. Finally, and most importantly, the Bill now matches the reality of the UK’s position under international law. This is the key point: exit day within the Bill should not be significant in and of itself, as it merely mirrors the actual moment at which we leave the EU under international law. Importantly, exit day is the clearly defined pivot on which this Bill turns. With the greatest respect to noble Lords, I therefore cannot support the amendments that seek to alter or undo the compromise reached in the other place.

Let me now try to analyse and comment on the specific amendments.

[Lord Hannay of Chiswick]

I am most grateful to the noble Baroness for giving way. She seems to have overlooked the fact that the Government will be perfectly capable of putting a date into the implementation Bill, which they have told the House will be brought forward before 29 March and which will be after the conclusion of the negotiations, and that will not present the same problems as doing it now. She also, if I may say so, has not dealt with the fact that it is frankly irrelevant whether, when the Government tabled the Bill, the non-mention of 29 March left it all to Ministers or left it all to Parliament. What is relevant is that the Government did not see the need to put 29 March in the Bill at all.

[Baroness Goldie]

Turning to the last point first, I have, for the sake of the noble Lord, tried to clarify where the Government were—as he rightly indicates—where they went, and why they went to that position. I cannot add to that: that is why we are in the position that we currently are. I will cover his other point about the connection with the implementation Bill, and I hope he will show me forbearance and let me deal with it.

I turn to Amendments 334 and 343, tabled by the noble Baroness, Lady Hayter, which seek largely to bring the Bill back to the state of its original drafting. However, as I have already set out, the Bill was not acceptable to the elected Chamber in that state. Instead, an acceptable compromise was reached that does two things: it simultaneously diminishes the power of Ministers in exercising delegated powers and increases the role of Parliament. It also introduced flexibility in varying the date, if required. It is not the case, as the noble Baroness suggested, that it is a straitjacket. That fear of rigidity and inflexibility was echoed by the noble Lord, Lord Hannay, in relation to the hypothetical extension of the Article 50 period. If that were to happen, exit day would then be linked to when the treaty ceased to apply, and the flexibility to vary the date is then expressly provided for in the Bill.

The noble Baroness, Lady Hayter, was worried that the insertion of a specific date in the Bill would somehow prejudice the Government’s ability in the negotiations. However, it is the very flexibility that is now in the Bill that enables the Government to respond sensibly and responsibly to whatever the negotiations may produce. That was also a fear on the part of my noble friend Lord Tugendhat and others, but the Government argue that, far from the flexibility prejudicing the negotiations, it facilitates and provides elasticity in the conduct of the negotiations. Given that, I regret that I am unable to support the noble Baroness and the Opposition Front Bench in attempting to overturn the existing provisions of the Bill. We believe that what emerged from the other place strikes the right balance.

I understand that there are concerns regarding the interplay between the implementation period and exit day. However, as I will reiterate shortly, this is not a Bill designed to legislate for the implementation period.

I move now to Amendment 345A, tabled by the noble Lord, Lord Adonis, which would remove part of Clause 14(4)(a). It always distresses me to disappoint the noble Lord, Lord Adonis, but not only am I not departing from my script—as he was speaking, I was busily adding to it. With his amendment, if the date at which the treaties cease to apply to the UK is different from the date we have put in the Bill, Ministers could amend the definition of exit day to any new date and not just the new date on which the treaties will cease to apply, as the Bill currently prescribes. The Government are conforming to international law, and we want to keep the Bill in line with that position. That is why we are unable to accept the noble Lord’s amendment.

Amendments 344 and 346, tabled by my noble friend Lord Hailsham, take a different approach, including seeking to insert a new clause which would make the exercise of powers under Clause 14(4) subject to a parliamentary resolution. Paragraph 10 of Schedule 7 already provides explicitly for a parliamentary vote on any changes to exit day. This was part of the compromise reached in the other place and is, I suggest, an appropriate level of scrutiny.

Amendment 334A, tabled by the noble Lord, Lord Adonis, attempts to shift the setting of exit day into the statute enacted for the purpose of Clause 9(1) of this Bill. I understand the noble Lord’s amendment to mean that he wishes exit day to be set in the withdrawal agreement and implementation Bill—something to which the noble Lord, Lord Hannay, referred a moment or two ago. With respect, I think we are familiar with the sentiments of the noble Lord, Lord Adonis, when it comes to leaving the EU, and I appreciate that within this House he is not alone. However, with regards to Clause 14, the failure to set an exit day for the purposes of this Bill has no bearing on whether or not we leave the EU, but such a failure certainly affects the manner in which we leave. If we cannot set an exit day, many functions of the Bill which hinge upon it—such as the repeal of the European Communities Act and the snapshot of EU law—would simply not occur. That would render the Bill largely redundant, preventing us from providing a fully functioning statute book and creating a void leading to total legal uncertainty when we leave—but we shall still leave.

Amendment 335, tabled by the noble Lord, Lord Wigley, attempts to set exit day at the end of the implementation period. I can appreciate the argument made here, which has been mirrored by some of the contributions made today. However, it is not the role of this Bill to legislate for the implementation period; that is for the forthcoming withdrawal agreement and implementation Bill. To do so in this Bill would link its operation inextricably to the ongoing negotiations, which is not the intention of this Bill. This Bill is intended to stand part and is—I have used the phrase previously—a mechanism or device whereby we avoid the yawning chasm which would occur if a huge bundle of very important law disappeared into a black hole. We cannot allow that to happen.

I accept that Amendment 345, tabled by my noble friend Lady Wheatcroft, is well intentioned. However, I suggest that it is unnecessary. I believe that the intention behind this amendment is to ensure that exit day can be changed if Parliament resolves to instruct the Government to request an extension of the Article 50 process—this was the point to which the noble Lord, Lord Hannay, referred. But as I pointed out earlier, if the Government were to make such a request, and that request was granted, the power would be engaged by virtue of subsections (3) and (4) anyway, so it is covered. I also reiterate a point made in an earlier debate that, fundamentally, it is our belief that we should not extend the Article 50 period and that this Bill is not the vehicle to raise questions of whose role it is to act on the international plane.

I finish by quoting directly from the Constitution Committee’s report on the Bill, which I know we all hold in high regard. It said that, on exit day:

“The revised definition of ‘exit day’ in the Bill sets appropriate limits on ministerial discretion and provides greater clarity as to the relationship between ‘exit day’ as it applies in domestic law and the date on which the UK will leave the European Union as a matter of international law. It also allows the Government a degree of flexibility to accommodate any change to the date on which EU treaties cease to apply to the UK”.


I realise that I may not have persuaded all of your Lordships of the Government’s position but I would at least hope that noble Lords will have some regard to the committee’s assessment of this issue. On that note, I hope the noble Baroness will agree not to press her amendment.

The noble Lord, Lord Newby, asked a pertinent question. He said that the Government have indicated in the draft agreement published recently that certain provisions apply, and he referred to a particular paragraph. I merely remind him that the Government have said before that nothing is agreed until everything is agreed, and the exit day power gives the Government the flexibility to reflect whatever is agreed in the final text of Article 168.

[Lord Newby]

I am grateful to the noble Baroness for that. I agree that nothing is agreed until everything is agreed, but that document states on the front of it that the Government have agreed the policy in it when it is marked as a yellow paragraph. Given that the Government have agreed that policy—there is no trick here—I want to work out what it means.

[Baroness Goldie]

It is a statement of very healthy and good intention. Nothing is agreed until everything is agreed, but it is certainly a signpost as to where we hope to go.

[Baroness Hayter of Kentish Town]

My Lords, one of the questions asked earlier was: what would happen if the European Parliament refused to give its consent? I have a note here from the European Parliament—it advises me that it is not legal advice and is not binding—which certainly says:

“if Parliament”—

that is, the European Parliament—

“refused to give its consent to a draft agreement negotiated by the European Commission, the Council would not be able to conclude the agreement with the withdrawing state”.

That is quite a serious thing to be reminded of.

Someone said earlier that there have been strong views across the Committee on this issue. As the noble Viscount, Lord Hailsham, said, it would be a grave mistake to put the date in statute. However, I disagree with him that the purpose of the amendment—certainly from our point of view—is to halt or up-end everything that is going on. Its purpose is to help the Government to get a better deal. The noble Duke, the Duke of Wellington, put it very pragmatically: he said that we may not be ready for this yet. He also said that we might not yet have got through what I call the “Withdrawal (No. 2) Bill”. However, we have not yet had the immigration Bill, the fishing Bill, the agricultural Bill, the customs Bill or the trade Bill—and there may be a VAT Bill as well. We may find ourselves in a position where we are not ready as a Parliament by the date written into the Bill. That is not a sensible way forward.

The noble Lord, Lord Wallace, said that we should not leave until a worthwhile arrangement has been agreed. This is all about giving us time to do that—and that is certainly what we have been looking to do.