European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, today will be a bit like a wedding, where brides are encouraged to wear something old and something new for luck. Today we have the return of that old double act, the noble Lord, Lord Callanan, and the noble and learned Lord, Lord Keen, so no change there, but appropriately perhaps, with brides in mind, we have two maiden speeches. The first is from someone I have known and worked alongside for 30 or even 40 years: the former MP and my noble friend Lord Mann, whose work on tackling anti-Semitism has rightly brought him to this House. The other is from the new noble Lord, Lord Barwell. I have great hopes of him, given how well he responded as Housing Minister to my pleas and those of this House to make client-money protection compulsory for letting agents. He heard the arguments, made a decision and made it happen. If only the current Government were as good.

Before us we have a very poor Bill, and one that is being rushed through Parliament. The rush is perhaps understandable, as 31 Jan is fast approaching, but it is not being just rushed but rammed through. The Government are determined to allow no change whatever, even if deficiencies are identified. This is both stupid, as corrections will have to be made later, and arrogant, with scant regard to our normal, democratic method of law-making.

[Lord Forsyth of Drumlean (Con)]

That is a bit uncharitable. How can the noble Baroness say that this is being rushed through when the House of Commons did not take the time allocated to discuss it?

[Baroness Hayter of Kentish Town]

I was saying that it is being rammed through, because no changes will be contemplated. That was the distinction I was trying— obviously unsuccessfully—to make. The issue is that our normal democratic method of law-making is for this Chamber to give serious consideration, and then for any amendments to be seriously debated in the other place to assess their worth and, where necessary, adapt accordingly.

Stephen Barclay, in the other place, warned and threatened us not to defy the will of the country. That reflects a complete—I hope not deliberate—misunderstanding of our role in a bicameral democracy. But it is not just Lords whom Ministers want to ignore. We have heard via the Speaker some serious concerns from the Welsh Government, which are not addressed by what the Minister has just said. Their concerns may lead to the likelihood—for the first time ever and risking the devolution settlement that has worked so well—of the Welsh Assembly denying legislative consent to a Bill; and still Ministers will not listen. A party with “Unionist” in its name should think twice before undermining a shared approach to making the devolution settlement work.

The Bill is also a bit strange. Clause 38 specifically recognises that the Parliament of the UK is sovereign, but the rest of the Bill proceeds to strip powers away from Parliament. It repeals the Benn/Cooper requirements to report to Parliament, disapplies CRaG, abolishes the meaningful vote for the withdrawal and final deals, and deprives Parliament of its say as to whether the implementation period should be extended, despite, as recently as October, Robert Buckland promising the other place that it would

“have its say on the merits of an extension of the implementation period”—[Official Report, Commons, 22/10/19; col. 915]

The Minister might say, “Ah, but that is what Clause 33 of the Bill—agreed by the Commons last week—does”. But the decision for no extension has been taken before we have even left, before we have seen any negotiating mandate either from the EU or from our own Government and before we know how such negotiations are progressing or what obstacles, from Northern Ireland or elsewhere, may stand in the way of a satisfactory agreement.

I have to tell the Minister that we are not going to try to save the Government from having a red face in the summer by giving them wriggle room now, but the chance of a deal, the implementation legislation and all the infrastructure being in place by December is frankly for the birds. I have waiting here my “I told you so” speaking notes, ready for when, in six months’ time, the Minister has to be here saying, “Oops. Can we change what we’ve just agreed?” We will leave that for him to do.

Our worries about the Bill stem from the Government’s own slogan, repeated just now, “Get Brexit done”. The electorate quite rightly judged that to mean “Come out by 31 January”. It did not mean “and do so by government diktat rather than by parliamentary process”, but that is what the Bill allows. There is no say over the implementation of our withdrawal, the objectives for the future relationship or the progress of those talks.

The Government say the Bill will

“ensure Ministerial oversight of the Joint Committee”

that deals with the withdrawal, but it will not ensure parliamentary oversight of what our EU Committee calls a

“uniquely powerful and influential body”

with

“significant responsibilities in relation to the Protocol on Ireland/Northern Ireland”

and with the power to amend the withdrawal agreement, a power immune from

“clear scrutiny procedures or parliamentary oversight”.

So, without UK MEPs, there will be no British parliamentarians able to scrutinise the decisions of government, whether over how we come out or, crucially, over the negotiations for our future relationship, because the Bill removes what was there before: our role on the mandate for and progress of negotiations on our trading, diplomatic, cultural, consumer, environmental and security relations with the EU. The Government have stripped out undertakings that Parliament would have an input into and oversight of these talks. Instead we will be left with a few “take note” debates and responses to Ministerial Statements. That is not proper scrutiny—

[Lord Pearson of Rannoch (Non-Afl)]

My Lords—

[Baroness Hayter of Kentish Town]

—and excludes the devolved authorities altogether. I think the noble Lord has his name down to speak, so I am sure he can come in later.

These EU negotiations are vital to the UK’s security and well-being. Those talks will not be easy or fast but, despite expert advice to the contrary, government Ministers continue to maintain that they can complete them all without even considering a longer negotiating period, or indeed a transition period to introduce whatever new agreement is then signed.

Eleven months is unrealistic for the negotiation, conclusion and ratification of a free trade agreement, a security agreement and all the other agreements envisaged in the political declaration. Our concern is that, without proper scrutiny over the coming months, and without any possibility of an extension to the transition period, the Government might just turn around in the autumn and say, “Sorry guys, no deal is possible”, and Parliament would be powerless to act.

Even now, as the Prime Minister formulates his objectives for the negotiations, he is refusing via this Bill to put his mandate to the Commons for approval, fuelling fears that it might include no deal—in other words, coming out on WTO terms—although I have to say that, with the schedules yet to be agreed and the WTO in some disarray, even that would be problematic.

The political declaration of 17 October signed by the Prime Minister sets out the framework for a deal, aiming at a

“comprehensive and balanced Free Trade Agreement”

and tariff-free trade in goods. If this is cast aside as the basis for the negotiation, despite Article 184 of the withdrawal agreement, this would be contrary to the spirit of the Vienna Convention that

“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”


Good faith seems in rather short supply just now.

Without any prior discussion, the Government have dropped the new ministerial power into the Bill in Clause 26; we will hear about this shortly from the noble Lord, Lord Anderson of Ipswich, and, I imagine, other noble and learned Lords. Clause 26 would enable Ministers to allow lower courts, not simply the Supreme Court, to decide not to be bound by ECJ rulings on the EU law that has now been put onto our statute book, risking legal uncertainty and possible divergence between English and Scottish jurisdiction, within the English and Scottish interpretation of law, within our UK-wide single market.

Sadly, in this Bill, we have seen a shameful disregard of the rights of vulnerable refugee children to be reunited with their families here. It is not enough to say, “We still believe in their rights.” Why take this from the Bill? There is insufficient fulfilment of guarantees given to EU residents, about which we will hear more from my noble friend Lord McNicol of West Kilbride, towards the end of this debate. In each case—whether to children, citizens or Parliament—the Government have back-tracked on promises made. This is a Bill of which they are proud, but of which they should be ashamed.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I begin by acknowledging the powerful maiden speeches delivered by my noble friend Lord Barwell and the noble Lord, Lord Mann, in whose speech there was nothing with which I could have possibly disagreed. I believe that every Member of this House would embrace both the content and sentiment that he expressed.

This Bill is of the highest importance and consequence for the country and is vital in delivering our withdrawal from the European Union at the end of this month. In opening, the noble Lord, Lord Newby, was candid and—I would venture—generous in acknowledging the position in which we stand since the general election. This Bill is not about whether or not we will leave the European Union; it is not about determining the terms of our departure from the European Union; it is not about the future relationship. The Bill ensures that the withdrawal agreement and the associated agreements under the EEA, EFTA and Swiss separation agreements are implemented in domestic law in order that they can be given full effect and thereby allow the Government to fulfil their obligations under international law.

I echo the sentiment of my noble friend Lord Callanan in acknowledging the work of all our Select Committees, including that of the Constitution Committee; the noble Baroness, Lady Taylor, indicated that it would deliver its report tomorrow, and we appreciate the speed with which it has addressed these matters. I also thank all noble Lords who contributed to today’s debate and discussion, although it will clearly not be possible for me in the time available between now and midnight to respond to each and every point that has been made.

The noble Earl, Lord Kinnoull, the noble Baroness, Lady Hamwee, my noble friend Lord Cope and other noble Lords raised the question of the prohibition the Bill places on the extension of the implementation period. The general election has clearly shown that the public want no further delay in our exit from the European Union, let alone potentially the 40 years’ delay of Exodus, as cited by the noble Lord, Lord Beith. The prohibition in this statute binds the Government to their manifesto commitment not to extend the implementation period beyond December 2020.

However, I reassure noble Lords that all parties have committed to using good faith to secure agreement on our future relationship by the end of 2020, and we will work with great energy to achieve this. Indeed, article 184 of the withdrawal agreement refers in particular to the obligations on all parties and, in turn, refers to point 135 in part five of the political declaration, where the parties themselves express the intention to have the agreement in force by the end of 2020.

The matter of citizens’ rights has been raised by a number of noble Lords, in particular by the noble Lords, Lord Newby and Lord Oates, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Teverson—I will come on to the particular point he raised in a moment. EU citizens in the United Kingdom are our neighbours, colleagues and workplace friends, and of course we value the contribution they make to the United Kingdom and wish them to remain here. We have already provided certainty to over 2.5 million people who have been granted status through the EU settlement scheme. The scheme is free, there is plenty of support for applicants, and they have until at least 30 June 2021 to apply to it.

I understand that the issue of presettled versus settled status has generated concern in some quarters. I make it clear that presettled status is a pathway to settled status, because those with presettled status can move straight to settled status by making an application once they reach five years’ continuous residence in the United Kingdom. I hope that puts some minds at rest. Indeed, we are taking a very pragmatic approach in trying to deal with applications, both of presettled and settled status. If an applicant needs to use the full five years of their presettled status, they will also receive an automatic reminder to apply for settled status before their leave expires. There is therefore no question of people being overlooked in this context. To that end, I understand that the Home Office’s automatic status checker uses the government database to help applicants secure the right form of status in a smooth and effective manner.

Reference was made by the noble Lord, Lord Teverson, and the noble Baroness, Lady Miller, to the status of UK citizens in the EU. However, that is of course not a matter of domestic law and is therefore not a matter for the Bill, which is intended to implement the international legal obligations which we have undertaken pursuant to the withdrawal agreement. Therefore, the status of UK citizens in the EU will be the subject of the future relationship negotiations.

Questions were asked, particularly by my noble friend Lord Leigh of Hurley and the noble Baroness, Lady Ludford, about the status of the IMA. I assure noble Lords that the Bill guarantees that the IMA will be fully independent of government. As the Bill sets out, the IMA will be run by an independent board and contain the appropriate expertise on citizens’ rights, and the Government will have no role in its day-to-day running or in its decisions. The noble Baroness, Lady Ludford, suggested that, pursuant to the provisions in Schedule 2 to the Bill, the IMA could be abolished. That is simply not the case. There can be a transfer of the IMA’s functions at some point, but those functions must be continued and carried on. After a period of eight years, it will be possible for the UK to negotiate with the EU on the matter of whether the IMA is still required, but the obligation to maintain it is one that we have undertaken in international law, pursuant to the withdrawal agreement, and one to which we as a Government will adhere. So, there is no question of the unilateral abolition of the IMA.

I listened to the concerns expressed across the House, particularly by the noble Lord, Lord Newby, in relation to the delegated powers in the Bill. The original sifting mechanism introduced in the EU withdrawal Act was a response to the exceptional circumstances we then found ourselves in. The situation now is quite different and it would not be appropriate to include a sifting mechanism in the Bill in this instance.

I listened also to the concerns expressed in relation to the power contained in Clause 21 to implement the protocol on Ireland and Northern Ireland. I also took note of the comments of noble and learned Lords on the DPRRC in this regard. But we in this space must be aware of what occurred in the other place and have regard to the response from the Government Benches to the concerns raised there. The Government have stated that providing certainty and reassurance to people and businesses in Northern Ireland is of paramount importance to them. The power contained in the Bill to implement the protocol provides that reassurance.

Furthermore, as my noble friend Lord Callanan pointed out at the beginning of the debate, the Bill’s approach to implementing the protocol is the best way to ensure that the United Kingdom can fulfil its international obligations and make the necessary arrangements to implement the protocol in the time available. Any other approach would risk jeopardising the Government’s ability to fully implement the protocol and would inevitably send a negative signal to both businesses and individuals in Northern Ireland. I hope that the House will agree that the fulfilment of these two aims—namely, ensuring that the Government can fully implement the protocol and reassuring businesses and individuals in Northern Ireland—should not be undermined.

Noble Lords asked about Parliament’s oversight of the future relationship negotiations. It was interesting to observe the different views that came from different sides of the House. For a while, many noble Lords expressed concern about the removal of parliamentary oversight. I believe that I noted both my noble friend Lord Bridges of Headley and the noble Lord, Lord Darling, expressing the view that, at the end of the day, negotiation of such matters as international relations had to be a matter for the Executive, essentially, and not one for Parliament to be directly involved in—albeit that, at the end of the day, myriad pieces of legislation will require to be approved by Parliament and put in place in order that the future relationship can be established and maintained.

The political declaration agreed by the Prime Minister as part of our exit negotiation sets out the framework for a comprehensive and ambitious free trade agreement with the EU. The general election result has clearly shown that the public support that vision and we consider that we have been given the mandate to begin negotiations on that basis. As the Prime Minister said in the debate on Second Reading in the other place, Parliament will be kept fully informed on the progress of these negotiations. Both Houses will have access to all their usual scrutiny tools, including Select Committees and the questioning of Ministers, and I have no doubt that the House will take full advantage of them. So, in these circumstances, we do not consider that there is a requirement for any additional statutory role. Furthermore, we are giving the EU Committee the ability to trigger debates on new pieces of law proposed by the EU that raise matters of national interest during the implementation period.

I turn now to the matter of unaccompanied asylum-seeking children, which was touched on by the noble Lord, Lord Dubs, and mentioned by a number of other noble Lords. Of course, concerns have been raised over family reunion for unaccompanied asylum-seeking children. I wish to make clear that the Government are fully committed both to the principle of family reunion and to helping and supporting the most vulnerable children. The Government, as my noble friend Lord Callanan observed, have a record of providing protection for vulnerable children, receiving 15% of all asylum claims from unaccompanied children in the EU.

Clause 37 does not represent a change to that existing government policy. It removes the statutory requirement to negotiate. This is appropriate as the Government have demonstrated their intentions by already writing to the European Commission to commence negotiations on this issue. It is vital that the Government are not legally constrained in those discussions. We are restoring the traditional division of competence between Parliament and the Executive when it comes to international negotiations. This clause fulfils the essential function of allowing us to continue negotiating a comprehensive agreement and rightly ensuring that Parliament is informed of the Government’s policy intentions in respect of our future arrangements.

I shall move on to deal with the question of the case law of the CJEU. I have noted the concerns that have been expressed here. While clearly EU case law is a defined body of law, it is important that our courts are not eternally bound by historic decisions of the EU Court of Justice after the implementation period has expired. Let me provide some important points of reassurance. First, the approach that we have taken is consistent with our international obligations. Clause 26 already provides for how the separation agreements must be interpreted and nothing that we do here will cut across that. Secondly, we want to approach this matter in a sensible way.

Let me be clear that there is no intention to extend the divergence from retained EU case law to every court and tribunal in the United Kingdom. We must consult with the senior judiciary before making any regulations, and the clause provides for the Minister to consult with others as is appropriate. What we intend is that the power will be used to ensure that retained EU case law is a living law rather than one preserved in aspic. There will be legal clarity at the point when any case concerning this body of law is heard. The power can be used only until the end of the implementation period, and the courts will be interpreting retained EU law only after that period. So we have the period of the implementation time in which to address this issue and it will then apply from the expiry of the implementation period. But I repeat that there is no intention on the part of the Government to extend the power to every court and tribunal in the land. We recognise the uncertainty that would be a consequence of such a move.

I turn to matters pertaining to devolution, which arose in a number of different contexts. First of all, the noble Duke, the Duke of Montrose, raised questions about the CAP and an agriculture Bill. I assure noble Lords that the CAP will continue to the end of the implementation period, by which time we will have taken forward the agriculture Bill. The noble Duke also referred to the frameworks, and perhaps I may remind noble Lords of the importance of these frameworks in the context of our relations with the devolved Administrations. Between October 2017 and March 2018, we published what was termed a common frameworks analysis, which set out about 153 areas in which EU law intersected with devolved competence. After discussion we have reduced that number, but have carried on an analysis of these areas with the devolved Administrations and continue to work closely with them on these issues.

One example of that is fisheries, which have already been mentioned in this debate, where we proposed a new UK framework to ensure access for UK fishing fleets throughout UK waters. That has been taken forward through discussion with the devolved Administrations and has been governed by principles agreed at the joint ministerial conferences. I give the detail of that just to underline the extent to which we are engaged with the devolved Administrations in this context.

As was suggested early on, the engagement between the UK Government and the devolved Administrations over the Bill has been rather unusual, because the recommendations coming back from the devolved Administrations have been principally concerned with reserved matters. The devolution settlement involved the reservation of specific matters to the United Kingdom Parliament. It was never intended that in the conduct of such reserved matters—for example, international affairs—the United Kingdom Parliament could be inhibited or frustrated by the devolved Administrations. That would not be normal under our devolution settlement, and that is reflected in the terms of the Sewel convention. For our part, the Government have followed the spirit and letter of the devolution settlement throughout the process pertaining to this Bill. The engagement of the devolved Administrations—

[Baroness Hayter of Kentish Town]

Does the Minister accept that while the negotiations may indeed be for reserved matters, in many cases the implementation is not reserved? That is why they are particularly worried about the lack of consultation.

[Lord Keen of Elie]

There are clearly circumstances in which the implementation of the withdrawal agreement will impact on the scope of executive competence of the devolved Administrations, and they are well aware of that, but those are not the issues they have sought to address with the UK Government in this context. They have sought to address matters that are reserved. As I say, the fundamentals of the devolved settlement, going back to 1998, never intended that where the UK Government were exercising a reserved function they should be inhibited or prevented from doing so by the devolved Administrations. It is important to bear that in mind.

As I say, we consider that we are taking appropriate steps to engage with the devolved Administrations, and we will continue to do so. Indeed, we continue to hope that the Welsh Government in particular will reflect on this and revise their recommendations to the National Assembly on legislative consent. At the end of the day, what we are doing here is implementing an international treaty obligation; that is the role of the United Kingdom Parliament.

I will now touch on one or two additional points in the limited time remaining. The noble Baroness, Lady Thornton, raised a number of issues with regard to health. Clearly, nothing is going to change before the end of the implementation period, and thereafter it will be a matter for the negotiation on the future relationship. It is not a matter for this Bill, which is intended to implement the present withdrawal agreement. She also made reference to the clinical trials directive. I should observe that the new EU clinical trials directive has not yet been adopted, so we do not even know where the EU will be with regard to that. Of course, once we do know, it may form the subject of negotiations on the future relationship.

The noble Baroness, Lady Crawley, made a powerful point that, after 46 years of being subject to EU law, women have still not secured equal pay. I certainly hope that we will do better after we leave the EU.

The noble Baroness, Lady Parminter, referred to animal welfare. At the moment, we cannot prohibit the movement of live animals because of EU law. But when we leave, let us hope that we can address that, because we have expressed an intention to do so.

The noble Baroness, Lady Donaghy, referred to UK worker rights. I notice that, in many respects, UK worker rights are much higher than the norm within the other EU 27 states. One has only got to consider such issues as paternity and maternity leave, and other related issues, to appreciate that what we may hope for after exit is that the EU is able to catch up with us.

I look forward to tomorrow’s Committee stage, where we can enter into more detailed scrutiny and debate on the issues that have been raised today. This Bill ensures that we honour the result of the 2016 referendum and leave the EU on 31 January, on the terms of the withdrawal agreement. It ensures that the agreements have full effect in domestic law and that, accordingly, the Government can discharge their obligations in international law.

Once the Bill is passed and the withdrawal agreement ratified, we will proceed to the completion of a free trade agreement with the EU by the end of December 2020. We can then go on to focus on other national priorities, such as the National Health Service, education and skills, and ensuring that we make our country safe. I commend the Bill to the House.

European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

11: Clause 13, page 17, line 12, at end insert—
“( ) No regulations may be made under this section after the end of the period of two years beginning with IP completion day.”Member’s explanatory statement
This amendment introduces a two-year sunset on the delegated powers relating to the coordination of social security systems, ensuring any subsequent changes must be enacted through primary legislation.

[Baroness Hayter of Kentish Town (Lab)]

Amendment 11 concerns a sunset clause and deals with one of the most crucial aspects of the Bill as it affects EU and UK citizens: the implementation of the guarantee that all their health, pension and benefit rights will continue after exit. It is true that there is a fixed cohort of citizens, perhaps up to 5 million EU citizens here and UK citizens abroad, who will be covered by these provisions as at the end of December. However, some of the rules and regulations will have a very long tail, affecting the access those 5 million people and their dependents will have to a range of payments and services long into the future. Ministers may well say, “It’s a fixed cohort, but these rights, and therefore the regulations affecting them, will go on a long time; that’s why we need the powers to continue to make tweaks and adapt to changing circumstances”.

--- Later in debate ---

[Lord Bethell]

My noble friend puts it well; I am not trying to brush off hundreds of thousands. I am trying to communicate a sense of this long tail of microregulatory changes, which are technically incredibly important. However, the priority is to demonstrate commitment and security to those millions of people today who will look to the Government to make a commitment to deliver those in years to come. To put an expiration date on the power could therefore inadvertently prevent the UK ensuring that its statute book complies with its international obligations under the agreements, and put in jeopardy the Government’s unequivocal guarantee to protect citizens’ rights. I therefore urge the noble Baroness, Lady Hayter of Kentish Town, to withdraw this amendment.

[Baroness Hayter of Kentish Town]

I welcome the noble Lord, Lord Bethell, to the Bill; I assume that this is only the first of his outings on it. I thank my noble friend Lord Howarth, the noble Lord, Lord Kerr, the noble Baroness, Lady Hamwee, and the noble Viscount, Lord Hailsham. I urge the Government to listen to what they say.

Perhaps the Government are saying that there will be so many small technical changes—but we would need to know that. If there was a sunset clause—possibly for longer than two years, as the noble Viscount suggested —we could see whether we are talking about lots of changes, but the Minister has not answered the question of why this cannot be dealt with more properly in a detailed statutory scheme where we will have a greater handle, or a greater grip, on these sorts of amendments.

I am concerned about what is referred to as “complex” or “technical” or a “tweak”. Over the past 10 or 15 years, we have seen pension regulations change: as we brought in civil partnerships, the right to a pension or the age of dependants also changed. These are big issues. These are not small tweaks where you report to this pension authority rather than that one. As has been said, some big issues could be addressed here without giving people outside this House enough time to comment on them. Remember, we are talking about people in Spain and Luxembourg, for example; by the time they hear that a statutory instrument is coming, it will probably have been passed. We are talking about a group of people who are very disparate and yet could be seriously affected by what is said to be a tweak.

I am still slightly concerned that, by enabling this to be there for all time, changes may be made to people’s death benefits, pensions or health provision, for example, without a proper discussion here. It would be a good idea, after I withdraw the amendment, for the Government to look closely at our Select Committee’s recommendation on whether there is a better method of achieving what the Government want to achieve, perhaps through moving an amendment to put in a sunset clause. Perhaps it could be for five years; in that time, we really would be able to see whether it is working as envisaged. Just having an open-ended commitment for all time on issues that will possibly affect people’s pensions or benefit payments seems to be a wide-ranging Henry VIII power.

[Viscount Hailsham]

Might I make a suggestion to the Government through the noble Baroness? One way would be having an extended sunset clause—for five years, for example—with a power to extend it further through an affirmative resolution procedure if, as the noble Baroness suggested, it appears to be working all right.

[Baroness Hayter of Kentish Town]

I think that what we are urging is: can we look at this and can we not get hung up on “We don’t want any amendments to this Bill”? If it were a government amendment, it could get nodded through and we could pretend that it had not happened, if the Government want a clean Bill—we will not even tell anybody, just send the tweak through. But it is important to get this right rather than worry about one’s amour propre. For the moment, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

12: Clause 21, page 25, line 5, leave out “(including modifying this Act)”
Member’s explanatory statement
This amendment would remove the ability to amend the European Union (Withdrawal) Act 2018 itself by statutory instrument in connection with the Ireland/Northern Ireland Protocol.

[Baroness Hayter of Kentish Town (Lab)]

I think we have got here earlier than some other noble Lords anticipated, which is why I may be speaking a bit slowly. They still have not arrived, so I give in—no, it is all right. Help is arriving at this moment. Amendment 12 stands in my name as well as those of the noble Lord, Lord Tyler, and the noble Viscount, Lord Hailsham. I shall also speak to Amendment 15, which is also in my name and those of the noble Lord, Lord Beith, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Thomas of Cwmgiedd.

Clause 21 is, as one of our committees describes it, a major clause adding significant new provision for Ministers to make regulations to implement the withdrawal agreement’s Irish/Northern Irish protocol, including

“any provision that could be made by an Act of Parliament,”

including modifying the 2018 Act. Unsurprisingly, our Delegated Powers and Regulatory Reform Committee, in its report of 9 January, therefore describes this provision as,

“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act in addition to creating a new legal regime that would otherwise require,”

an Act of Parliament. Amendment 12 would remove the ability in the current Bill to amend the 2018 EU withdrawal Act by statutory instrument in connection with the protocol. Amendment 15 would place a series of limitations on the regulation-making powers allowed for in this clause.

First, Amendment 12 would, as I say, remove the ability to amend the 2018 Act. It is both unusual and unexplained as to why the Government want to give themselves a power, with only the most cursory scrutiny, to amend primary legislation. I know certain newspapers took umbrage this morning at my warnings to the Government yesterday against ramming through legislation even if it contains deficiencies, and of them being unwilling to listen to reason. But here we appear to have a provision almost certainly written as a failsafe; I think the Government know that they will almost certainly have got things wrong. This is not a way to make good law. We do not like it and it should come out.

Amendment 15 is needed as, for unexplained reasons, there are no restrictions on the scope of the Henry VIII powers in respect of implementing the Northern Ireland protocol. That is in contrast to all the other Henry VIII powers in the 2018 Act and elsewhere in this very Bill—for example, in Clause 18. Amendment 15 would add the same restrictions as are in the 2018 Act, and indeed elsewhere in the Bill, on making relevant new criminal offences, setting up public bodies or imposing fees and taxation by secondary legislation. Given what is elsewhere in the Bill and in the earlier Act, I hope that the Government will accept these changes.

Crucially, Amendment 15 would also ensure that neither the Human Rights Act nor the devolution Acts could be amended or repealed by secondary legislation. It is probably the view of the whole House that changes to fundamental rights should be made only by Parliament through primary legislation, not by Ministers through secondary legislation. As the noble and learned Lord, Lord Thomas of Cwmgiedd, whom I am glad to see in his place, said yesterday, it would be,

“ a terrible precedent … if we altered the devolution legislation other than by primary legislation”.—[Official Report, 13/1/20; col. 532.]

Unsurprisingly, the Welsh Government particularly support proposed new paragraph (f) in Amendment 15, with its restriction to prevent UK Ministers using such powers as are allowed in this clause to amend the statutes that embed the devolution settlements. There is already a perfectly viable way of amending the Welsh statutes without primary legislation, where the National Assembly itself agrees to the change: through a Section 109 Order in Council.

Why have the Government written themselves these powers in Clause 21? Should the Government refuse to accept Amendment 15, particularly its proposed new paragraph (f), they will by that refusal feed the suspicion that they want this power to make changes to devolution settlements even where the National Assembly and the Welsh Government are opposed to such changes. I therefore trust that the Minister will accept this amendment and, today, rule out any chance of the Government using these powers to amend the Government of Wales Act without the consent of the National Assembly. I beg to move.

[Lord Tyler (LD)]

My Lords, I wish to speak to Amendment 12, to which my name is attached. This is quite different from most of the other amendments which have come before the Committee. It is in no sense political; it is a matter of process, not politics. Its significance lies only in the clause’s defiance of our normal parliamentary processes and the danger of establishing a very unfortunate precedent. There are two consequences: first, this modest improvement cannot be characterised as holding the Bill up; and, secondly, it cannot be said to be a wrecking amendment because it is nothing of the sort.

I am disappointed that the noble Lord, Lord Cormack, is no longer in his place—he was there just a few moments ago—because I listened carefully to his speech yesterday and I was struck by a point he made which then seemed to be followed by a number of noble Lords, albeit a small minority. I refer to the point he made about the Salisbury-Addison convention, which was agreed between the leader of a small group of Labour Government Peers and a large group of hereditary Conservative Opposition Peers after the 1945 election. The name is significant because it was a deal made between two individuals appropriate to those precise circumstances. It has limited relevance now, as was so comprehensively analysed by the 2006 Joint Committee on Conventions, on which I served.

That committee reiterated:

“In the House of Lords: A manifesto Bill is accorded a Second Reading; A manifesto Bill is not subject to ‘wrecking amendments’ which change the Government’s manifesto intention as proposed in the bill; and A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.”


In passing, I note that the noble Lord, Lord Strathclyde, the then Leader of the Opposition, was on record as stating that the doctrine needed to be re-examined:

“Election promises can be vague and easily manipulated by governments, who reserve the right to jettison manifesto promises if things change. If governments can have the right, why cannot Parliaments too have a say on circumstances as they change?”—[Official Report, 24/1/01; col. 294.]


Similarly, the Joint Committee took a great deal of evidence on the issue of secondary legislation. It was told by all parties that the Salisbury-Addison agreement did not apply. In relation to this clause and this protocol, we therefore have to conclude that Salisbury-Addison is totally irrelevant.

This is not a wrecking amendment. The provision was not spelt out in the manifesto, and in any case secondary legislation was specifically excluded from the convention—and that was just a bilateral agreement excluding other parties and the Cross-Benchers and was overtaken by events precisely as Lord Strathclyde pointed out.

I emphasise these points for two reasons. First, yesterday a few noble Lords seemed to be dangerously near to suggesting that your Lordships’ House should forgo its proper constitutional role in scrutinising this Bill, not least in relation to its significance in terms of the relationship between the Executive and Parliament. Indeed, one or two noble Lords seemed to be on the verge of bullying us with threats of reform to this House. As a very long-term advocate of reform, I say, “Bring it on”. The 2012 reform Bill, with which I was much involved, received a massive majority of 338 in the Commons with all parties giving it majority support—so it is over to you, Mr Cummings. Indeed, I would repeat Mr Clint Eastwood’s remark: “Go ahead, punk, make my day.”

Secondly, we must distinguish between on the one hand this amendment and the few others which seek to instil proper parliamentary process, avoiding precedents which future Governments could exploit, with more substantial political changes to the Bill on the other.

--- Later in debate ---

[Lord Duncan of Springbank]

To be clear, the information I have from my officials is that this will be done by the affirmative procedure. It is important to stress that point. Further, returning to the protocol, which has not been fully discussed in this particular debate, the question is: what do the two amendments seek to do? While we have no intention of in any way seeking to unravel the Wales Act or the Scotland Act, there will necessarily be elements in the Northern Ireland Act which will have to be explored and addressed, with full consultation—I express that clearly—with the restored Executive and Assembly. They will have this element for the first time: it was not there before. For example, the issue of democratic consent to the wider Northern Ireland protocol would represent a necessary adjustment to the Northern Ireland Act. This could only be taken forward by full dialogue and discussion with the restored Executive to ensure that the four and eight-year cycle that needs to go forward is inside the heart of this approach. There are also going to be elements, which we have anticipated, of disapplication of certain elements of retained EU law as they affect Northern Ireland. They too, in a domesticated form, would need to be adjusted using these powers.

We fear that there may be a hindrance of our ability to adopt the decisions of the Joint Committee, bearing in mind that that committee was established between the UK and EU. We will need to be able to move that forward in real time and this too will require a power similar to that which we have set out. Another thing we must be on top of is that we have, in this scenario, a potential restriction which might impact on the very issue which I thought might be more expansively explored—the unfettered access part—for reasons which will be touched on in the debate to follow. This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule. Rather it is to allow the Government, where necessary and through full consultation with the powers of Northern Ireland, to deliver the elements that will emerge in the ongoing negotiations and in any other concomitant parts, to ensure that we are ready to deliver the required elements by one year from today. If we fail to do that, we run the risk of undermining our international obligations. That would then create the problem that this is designed to try and avoid.

It would be very easy for me to say: “You have just got to trust me”. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland. That is its purpose and that is, principally, why we are here tonight. I am tempted to quote from Clint Eastwood, but the only quotes I could come up with are:

“Do you feel lucky, punk?”


and “Make my day.” I am not sure either one is particularly relevant.

In conclusion, the purpose of this is to ensure that Northern Ireland is safe and secure as we move forward and is in such a place that the protocol will function in its entirety. Equally, and most importantly—it is a genuine pleasure to say this—there is now a restored Executive and an Assembly where these matters should be discussed and whose voices must be heard and heeded. In the year ahead, we commit to ensuring that Northern Ireland is a full component part of the debate and discussion on the issues of Brexit. That is something which I have not been able to say for a very long time.

On that basis, I cannot support the amendments as they have been tabled. I understand where they have come from, but I am afraid I cannot give comfort in that regard. However, I am committing to set out exactly why we believe these powers are necessary in the area of Northern Ireland and why they are there. I hope that, on that basis, the noble Baroness will recognise where I am coming from on these matters.

[Baroness Hayter of Kentish Town]

I am afraid that that does not answer the points noble Lords have made. It is not so much that the powers are needed for Northern Ireland, but there should be restrictions on them. I am sorry, because the Minister is normally brilliant at the Dispatch Box and very well briefed. However, had he read Amendment 15 he would have seen what we were trying to write in by restricting those powers, such as not undermining the Government of Wales Act. He would have understood that we were not questioning that some of the powers will be needed for Northern Ireland—we will come to that in a different debate—but the way they have been set out in this clause. Unlike Clause 18, which I quoted, Clause 21 does not have the restrictions on those powers that exist in the other clauses in the Bill or, indeed, in the 2018 Act.

Our concern remains. It is good to have a northern voice. Most of us here are Welsh or from the West Country, where we feel this very strongly. The Minister is saying that these powers were not designed to undermine devolution and that the intention is not to use them that way, but that is not good enough. When something is put in an Act of Parliament, it is a power. No matter that it is not intended to be used that way, the power is there. As the noble Baroness, Lady Finlay, said, there is already another way. Although I cannot see that the Government of Wales Act would need to be altered for Northern Ireland, if it does there is a perfectly good way of doing it. Denying the restriction, whether it is new criminal offences or anything like that, which exist for all the other Henry VIII powers, is very hard to substantiate, simply because it is to do with Northern Ireland. Not accepting that the other devolution settlements should be in any way accessible to these powers is unsatisfactory. As other noble Lords have said, even the word “repeal” is like waving a red flag at the way these powers could be used.

Having heard from the noble Lord, Lord Tyler, my noble friend Lord Howarth, the noble Baroness, Lady Finlay, and the noble and learned Lord, Lord Thomas, I hope that the Minister might look again at the wording of these amendments and understand why we have real worries about them. Perhaps he would be willing to meet before Report. Otherwise, it will be necessary to try to circumvent these powers in a way that happens elsewhere, but not in relation to the Northern Ireland protocol. I leave the Minister with that thought and beg leave to withdraw the amendment.

Amendment 12 withdrawn.

European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Morgan (Lab)]

Many distinguished Lords have spoken on the amendments, and I agree with them all, particularly the noble Lord, Lord Kerr, who is just leaving. It illustrates the lack of comprehension that there has been about how the British union state has changed, and how its pluralism has changed and become a more central feature.

I have had the great privilege of being on the Constitution Committee for the past four years, and this issue kept recurring. It is not a dispute or debate that has suddenly emerged; it came in Bill after Bill connected with constitutional relationships and with trade, yet somehow it was not resolved, mainly because the devolved Assemblies were being bypassed, often in a very hurtful way, leading to accusations of power grab and such statements.

The issues that have been mentioned include: reserved powers for the Welsh, Scottish and Northern Irish Governments, an issue that has come several times and has not yet been dealt with properly; and the outcome of European legislation when it is transferred to this country, which has not been adequately dealt with either. We discussed this frequently on the Constitution Committee and wrote what I thought was a very important survey of intergovernmental relations. It seemed to have very little effect on ministerial thinking, or indeed on thinking about the nature and importance of devolution throughout our country.

In particular, there is the inadequacy of the Joint Ministerial Council, which is mentioned in Amendment 29. The JMC is an almost hopeless body that has staggered on for two decades with no clear membership, no clear times for convening, and very little effect in real intergovernmental consultation, so I very much hope, as everybody does, that the Government will feel able to accept these proposals. Otherwise, the effect could be disastrous. Our union is in grave danger. People refer primarily to Scotland, but in my experience discontent in Wales is certainly much stronger than it was. It would be tragic if inattention and carelessness led to our leaving not one important union, but two.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, following not just yesterday’s speeches, but those today from the noble and learned Lord, Lord Thomas, my noble friends Lord Howarth, Lord Griffiths, Lord Murphy and Lord Morgan, the noble Baronesses, Lady Finlay and Lady Randerson, and the noble Lord, Lord Wigley, from Wales, as well as welcome additions to our West Country debate from the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Kerr, the Government should have heard by now that the devolved authorities and people close to them feel somewhat squeezed out of the Government’s handling of our withdrawal from the EU and our future relationship with it, and of how the Government plan to discuss, or not, with those representatives as we go forward. That was probably not helped by the response of the noble Lord, Lord Duncan, last night.

We particularly welcome Amendments 18, 23 and 45, accepting in particular that, if we really must have an albeit non-legally enforceable statement about the sovereignty of Parliament in the Bill, it surely has to be accompanied by at least an equivalent nod to the devolution settlements and the Sewel convention to safeguard the union, as my noble friend Lord Murphy emphasised.

Looking towards the future, the noble and learned Lord, Lord Thomas of Cwmgiedd, said earlier this week that devolved Governments have an interest in all the negotiations. It is not simply the bits that can be identified as within their competence, because how agriculture pans out will absolutely affect the future of those countries. So will other parts of trade.

Our Amendment 29 in the name of my noble friend Lady Smith, as well as those of the noble Baroness, Lady Ritchie, and the noble Lords, Lord Bruce and Lord Kerr, seeks to achieve the input of the devolved authorities in the negotiations. As we have heard, it would place the Joint Ministerial Committee on EU Negotiations on a statutory footing—something that we have urged on the Government since its formation in 2016. As my noble friend Lord Morgan reminded us, it has been pretty constantly discussed in the Constitution Committee. The amendment would ensure regular and frequent meetings of the JMC on EU Negotiations, which as we have heard, has at times been sidelined, especially when it was seen as a bit inconvenient. The noble Baroness, Lady Randerson, said that it had a “chequered” history. As my noble friend, Lord Griffiths, reminded us, it was not used in the way intended when it was set up. Importantly—we have not heard this voice this morning—the amendment would also require the JMC to focus on the very unique challenges facing Northern Ireland, including the aspects discussed in your Lordships’ House last night.

The amendment also covers the relationship between the JMC—the Joint Ministerial Committee—and the new and, as we have heard, highly important UK/EU Joint Committee. For example, the Secretary of State would have to brief British members of the Joint Committee to make sure they knew what the JMC was discussing, so that discussions held with the devolved authorities were fed in to the UK negotiators. This is vital. The British members of the Joint Committee, who would, of course, be Ministers, would have to give regard to the views of the Joint Ministerial Committee, which brings together the devolved authorities. They would also have to bear in mind the requirement of the Northern Ireland protocol to facilitate trade between Northern Ireland and Great Britain.

It is particularly important, as the noble and learned Lord, Lord Wallace of Tankerness, said, to realise that, in addition to a general interest in all these negotiations, much of the implementation will fall to the devolved authorities. As any of us who have been involved in developing policy know, if you do not discuss beforehand how it is going to be implemented, the chances are that the policy will not work.

Given the importance of ensuring that Brexit works for all parts of the UK, including the devolved nations, and given the concerns of the devolved Administrations that they are being excluded from vital talks—as we have heard, an amendment which we will come to later about the authority of courts has been tabled without any consultation with them—we look forward to a rather more positive response from the Minister when he replies. If the response is really positive, it might help the Welsh Assembly to consider whether it wants to give its legislative consent to this Bill.

[Earl Howe (Con)]

My Lords, I am grateful to all noble Lords who have spoken to this group of amendments. The thread that binds together the amendments spoken to by the noble and learned Lord and other noble Lords is their entirely legitimate interest in the Government’s level of engagement with the devolved Administrations and the protection of the devolution settlements. Having listened also to the noble Baroness, Lady Finlay, I fully understand that these amendments particularly reflect some of the concerns raised by colleagues in the Welsh Government. I hope I can reassure the Committee that these amendments are not necessary and the Government are fully committed to proper engagement with the devolved Administrations.

I turn first to Amendment 18. It is clear to me that the concern here is about the scope and breadth of the powers in this clause. I hope that I can address those concerns satisfactorily. I should add that the Government have also taken note of the report produced by our noble colleagues in the Delegated Powers and Regulatory Reform Committee in relation to the powers contained in this Bill.

I hope I am right in understanding that the noble and learned Lord is concerned that, without this amendment, the devolved authorities would be able to use the powers provided in Clause 22 to implement the protocol and, in doing so, would be able to amend the devolution statutes in those areas where they have such competence. However, I am afraid I have to resist this amendment because the restriction proposed by it risks preventing the United Kingdom fulfilling its international obligations, which stem from the Northern Ireland protocol. The noble and learned Lord will understand that we must be able to fulfil those obligations as a responsible player in the international system and as a close partner of our European neighbours. The particular problem with the amendment is that the proposed restriction would prevent the devolved authorities adopting certain decisions agreed between the UK and the EU in the Joint Committee, in relation to the operationalisation—if I may use such a word—of the protocol in areas of devolved competence. I must make it clear that that risk to the UK being able to fulfil its international obligations is unacceptable to the Government.

This amendment would have the effect of preventing amendments to the devolution statutes, even in situations where the devolved Administrations agreed to an exercise of the power in new paragraph 11M(2) jointly with the UK Government. This restriction could therefore hinder the introduction of UK-wide legislation that has been agreed on by all four nations of the United Kingdom. The Government could not allow such a situation.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords, I too am not a lawyer, and I will not even attempt to add to the legal arguments, which have been so well set out by the noble and learned Lords, Lord Woolf, Lord Judge, Lord Thomas of Cwmgiedd and Lord Brown of Eaton-under-Heywood, as well as by the noble Lord, Lord Beith, and others, as to why any decision on the interpretation of retained EU law should be taken at Supreme Court level, as envisaged in the 2018 Act, and why ministerial regulations are simply not appropriate in this matter.

I will say three things. One is that it is a really bad way to make law suddenly, with such a clause, with no consultation either with the judiciary—if this was the consultation that has happened today, I think we can take it as, “No thanks”—or, indeed, with the devolved nations, which we discussed earlier. I will answer the question put by my noble friend Lady Taylor about what the Government have in mind. At a briefing, it was very clear that they already had something in mind, a sunset clause at the end of this year, and my answer is simply that there is something that is not oven-ready at the moment that is waiting to come in. There is a closed envelope somewhere, and it is appropriate that we should be told what exactly is in it, so perhaps we could hear about that later.

Secondly, as the noble and learned Lord, Lord Mackay of Clashfern, has said, Clause 26 could result in the divergence of approach within and between the jurisdictions of the UK on matters where a common approach is essential: things that are fundamental to our UK-wide single market. On Monday, the noble Duke, the Duke of Montrose, recalled that for 40 years EU legislation

“ensured that there was a large amount of similarity and coherence in how these laws were interpreted in the various parts of the United Kingdom. The question that arises now is: will we require to maintain that level of coherence in order to operate as a single national economy? This will be particularly true for food, farming, fishing … in Scotland and … the devolved Administrations.”—[Official Report, 14/1/20; cols. 530-1.]

Harking back to the earlier discussion about the all-United Kingdom economy, this seems a crucial issue. Allowing lower, non-UK-wide courts to interpret the regulations that the noble Duke, the Duke of Montrose, mentioned, environmental matters, as raised by the noble Baroness, Lady Jones, or VAT or duties, which the noble and learned Lord, Lord Judge, mentioned, could open a wide door to divergence on issues within our own single market.

Thirdly, there is obviously a fear that this provision risks undermining workers’ rights, given that the political declaration makes no mention of the rights previously protected by the European Charter of Fundamental Rights and its key principles which have found their way into EU case law. Employees in the UK benefit from the ECJ’s sometimes more generous interpretation of employment rights, such as the right to paid holidays, the requirement for employers to keep records of hours worked to comply with the working time directive, and the ruling as to whether overtime is factored into holiday pay. These have been essential and are now part of UK law—of course via case law. Without a guarantee to uphold the body of case law on workers’ rights, the Prime Minister’s commitment to protect our employee rights after Brexit will sound more hollow than any chimes of Big Ben, whether on 31 January or any other day.

Clause 26, which has been dropped in with no rationale, prior debate, consultation or Green Paper, diminishes the Bill while introducing uncertainty into our laws. It has no place here. We will seek to remove it, although, as other noble Lords have said and as the noble and learned Lord, Lord Mackay of Clashfern, urged, it would be much better if the Government were to do this.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to the noble Lord, Lord Beith, for moving the amendment in the name of the noble Lord, Lord Pannick. I will seek to offer some explanation and reassurance with regard to the clause in question.

As has been noted by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we are concerned here with retained EU law. For clarity, Clause 26 draws a distinction between retained EU law and relevant separation agreement law, which is applicable as a consequence of the withdrawal agreement and is untouched by any of these proposals, given our international law obligations. Retained EU law will form part of the law of the United Kingdom. It is then a question of how we approach the interpretation and application of that law, which, in turn, takes us to the question of precedent and the binding force—at present—of decisions of the Court of Justice of the European Union in this context.

Provision has already been made, pursuant to Section 6(5) of the 2018 Act, to confer upon the United Kingdom Supreme Court the power to depart from previous decisions of the Court of Justice of the European Union. The idea that one can depart from such a body of case law is hardly novel. It has been a feature of common law since at least the 1960s, when the judicial committee of the House of Lords expressed its intention to depart from previous case law as and when it felt it was necessary to do so. Therefore, we are not, as it were, moving into novel territory in this context.

The intention behind this clause is to give a power to make regulations to ensure that the United Kingdom courts are not inappropriately bound by retained EU case law as part of the body of United Kingdom law after we have left the European Union. It goes no further than that. These courts may choose to follow that case law, but the point is to ensure that they are not bound to do so in circumstances where they form a view that it would be inappropriate to the development of UK law for them to do so.

The Government are sensible in the manner in which they will seek to exercise the regulatory power. The Bill requires that Ministers must consult the senior judiciary across the whole of the United Kingdom before making any regulations, and indeed may consult other appropriate persons, and any regulations will be laid before Parliament under the affirmative procedure. Those safeguards are clearly in place.

We want to ensure that United Kingdom law after we leave is consistent and clear. The power will be employed in a way that is consistent with our own constitutional norms and traditions: judicial independence, the doctrine of precedent and the separation of powers. Any regulations will respect these long-established principles but will also allow that retained EU case law is not the sole preserve of the court of final appeal, be it the United Kingdom Supreme Court or, in the context of criminal matters, the High Court of Justiciary in Scotland.

[Baroness Hayter of Kentish Town]

The Minister says that this will be done under the affirmative procedure. Should that come here, we have always had the right to negate such an order. However, should this House do that, given the advice it has had, it would not be challenged as a constitutional outrage but would be a proper use of this House’s power.

[Lord Keen of Elie]

It would always be a proper use of this House’s power, albeit there are constitutional norms that apply. However, it is not just this House; the House of Commons would also have the opportunity to address the terms of any regulations. I have no doubt that, having regard to our constitutional norms, this House would have regard to the determination of the House of Commons on that point, but would not be absolutely bound by it. I fully accept that.

--- Later in debate ---

[Lord Keen of Elie]

I do not consider that this clause in any sense violates the principle of the separation of powers.

[Baroness Hayter of Kentish Town]

Given that that Minister has not answered my noble friend’s question and given that there is a sunset clause on this, there must be something ready to go. Can he not explain what it is?

[Lord Keen of Elie]

No. What is ready to go is a consultation process. That is why we have not reached a conclusion. The noble Baroness, Lady Taylor, asked two questions, the first of which was, “Are the Government going to use this power?” We are going to use it in order to consult with appropriate parties. May I give examples? Examples have been given by noble and learned Lords. One example is a reference system to the Supreme Court. Another example is to extend this power to the Court of Appeal. That is what we want to determine by virtue of the consultation process we wish to take forward.

--- Later in debate ---

[Lord Keen of Elie]

With respect to the noble and learned Lord, we seek to consult on the appropriate test to be applied in taking this matter forward. We intend to do that in consultation with the senior judiciary.

[Baroness Hayter of Kentish Town]

My Lords, given that the existing law has now been in place since 2018 and all that time could have been used for this consultation, why has this suddenly gone in now with the power to make changes by ministerial decision? If it was not felt at the time that the 2018 position was correct, why has this consultation—which could take place without an Act of Parliament—not already taken place?

[Lord Keen of Elie]

My Lords, in the interim there had been certain distractions, including a general election—the outcome of which the noble Baroness will be familiar with.

European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

27: After Clause 30, insert the following new Clause—
“Oversight of negotiations for future relationship
After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—“13C Negotiations for future relationship(1) A Minister of the Crown must, before the end of the period of 30 Commons sitting days beginning with the day on which exit day falls, make a statement on objectives for the future relationship with the EU.(2) A Minister of the Crown may, at any time after the initial statement is made, make a revised statement on objectives for the future relationship with the EU.(3) A statement on objectives for the future relationship with the EU must be consistent with the political declaration of 17 October 2019 referred to in Article 184 of the withdrawal agreement (negotiations on the future relationship).(4) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown, and(b) a motion for the House of Lords to take note of that statement has been moved in that House by a Minister of the Crown.(5) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the most recent statement on objectives for the future relationship with the EU to have been—(a) approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) the subject of a motion of the kind mentioned in subsection (4)(b).(6) After the end of each reporting period, a Minister of the Crown must—(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the most recent statement on objectives for the future relationship with the EU to have been approved by the House of Commons, and the subject of a motion in the House of Lords, as mentioned in subsection (4), and(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that statement, an explanation of why that is so, and(b) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—(i) the Scottish Ministers,(ii) the Welsh Ministers, and(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.(7) Subsections (8) and (9) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.(8) A Minister of the Crown must lay before each House of Parliament—(a) a statement that political agreement has been reached, and(b) a copy of the negotiated future relationship treaty.(9) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown and—(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.(10) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (9) applies in relation to the ratification of that treaty.(11) In this section—“devolved legislature” means—(a) the Scottish Parliament,(b) the National Assembly for Wales, or(c) the Northern Ireland Assembly;“future relationship with the EU” means the main arrangements which are designed to govern the security and economic aspects of the long-term relationship between the United Kingdom and the EU after IP completion day and to replace or modify the arrangements which apply during the implementation period, but does not include the withdrawal agreement;“negotiated future relationship treaty” means a draft of a treaty identified in a statement that political agreement has been reached;“negotiations” means negotiations the opening of which, on behalf of the EU, has been authorised under Article 218 of the Treaty on the Functioning of the European Union;“reporting period” means— (a) the period of three months beginning with the first day on which a statement on objectives for the future relationship with the EU is approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) each subsequent period of three months;“statement on objectives for the future relationship with the EU” means a statement—(a) made in writing by a Minister of the Crown setting out proposed objectives of Her Majesty’s Government in negotiations on the future relationship with the EU, and(b) published in such manner as the Minister making it considers appropriate;“statement that political agreement has been reached” means a statement made in writing by a Minister of the Crown which—(a) states that, in the Minister’s opinion, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU, and(b) identifies a draft of that treaty which, in the Minister’s opinion, reflects the agreement in principle;“treaty” has the same meaning as in Part 2 of the Constitutional Reform and Governance Act 2010 (see section 25(1) and (2) of that Act).””Member’s explanatory statement
This amendment reinstates the oversight Clause from the original version of the Bill, providing an ongoing role for both Houses of Parliament during the future relationship negotiations.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, Amendment 27 stands in my name and that of the noble Lords, Lord Wallace, Lord Hannay and Lord Bowness. I will also speak to Amendment 28, which is in almost the same names, and Amendment 40, which was tabled by the noble Lord, Lord Wigley. These amendments would essentially reinstate what had been promised in the earlier Bill: proper parliamentary oversight of the Government’s negotiating mandate and the negotiations themselves. They would also ensure proper reporting back including, crucially, on whether a satisfactory deal looks probable before the cut-off date for any extension. This is especially relevant, perhaps, if the FT is correct that the Prime Minister himself is finally beginning to doubt that all can be done and dusted by the due date.

As the Bill stands, the European Parliament will have a much greater say over the stance of the EU negotiators than we will over ours. The Minister shakes his head. His knowledge of the European Parliament is certainly longer than mine, but I think he will find that it will have a rather greater grip than we will over what happens.

Our EU Committee expressed its concern about the omission of the old Clause 31 of the October Bill, without which Parliament will have no statutory role in respect of the future trade deal, save a very limited final nod under the CRaG—and even that can be disapplied by a Minister. We have agreed before in this House that Parliament should be involved throughout the process to ensure that, apart from anything else, the talks are not heading to the rocks of no deal. But that is presumably exactly why the Government do not want us to have a role.

Despite the commitments made at the Dispatch Box by the Government before the election, they have stripped those statutory rights from this Bill—all because they have a majority of 80. The Commons was told not to worry and that Parliament would of course have a meaningful role throughout the future relationship negotiations but, as that role has been deliberately dropped from the draft legislation, I am afraid that that assurance is simply not good enough. The removal of the original Clause 31 shows how the Prime Minister can change his mind; we are simply asking for the first version of his mind to be in the Bill. Amendment 27 reinstates the Government’s own words.

Amendment 28 is slightly different; it asks the Government to update MPs and us on progress in negotiations half way through the implementation period and requires a Minister—who of course cannot mislead the House—to give an assessment of whether a deal is likely before 31 December and, if it does not look likely, to outline the Government’s approach.

Amendment 40, tabled by the noble Lord, Lord Wigley, seeks the approval of both MPs and the devolved legislatures for the Government’s negotiating objectives—a goal that we clearly share.

The noble Lord, Lord Boswell, who is not in his place, said at Second Reading that

“scrutiny is not an optional extra.”—[Official Report, 13/1/20; col. 483.]

Amen to that. If the Government will not accept these amendments, they need to explain what exactly they are afraid of and why a Government, answerable to Parliament, are deliberately cutting elected MPs, as well as your Lordships’ House, out of any meaningful role. I beg to move.

[The Earl of Kinnoull (Non-Afl)]

My Lords, I spoke at Second Reading about the dropping of Clause 31, which was in the October 2019 version of the Bill and is in Amendment 27, as the noble Baroness, Lady Hayter, has just said. I thought it would be helpful to have better detail about the position for MEPs, among other things. The position is set out in Article 218 of the Treaty on the Functioning of the European Union, which says:

“agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.”

It runs through that procedure and says, in paragraph 10:

“The European Parliament shall be immediately and fully informed at all stages of the procedure.”


That is further backed up by the interinstitutional agreement between the European Parliament and the European Commission, which says in part III:

“Parliament shall be immediately and fully informed at all stages of the negotiation and conclusion of international agreements”.


That is at paragraph 23. It goes on:

“The information referred to in point 23 shall be provided to Parliament in sufficient time for it to be able to express its point of view if appropriate, and for the Commission to be able to take Parliament’s views as far as possible into account.”

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[Lord Callanan]

There is not a direct analogy between the position of the UK and that of the EU. The UK is one member state and the EU is 28—shortly to become 27—member states. My point is that this enables the UK to speak with a single voice in negotiations and ensures that partners can have faith that the Government’s position is the position of the United Kingdom.

It goes without saying that the Government will of course support Parliament in fulfilling its important role in scrutinising the actions of the UK Government in the negotiations. Both Houses will have all the usual arrangements for scrutinising the actions of the Government. I find incredible the statements that have been made about how little a role Parliament will have to play in these negotiations. This House alone has spent over 650 hours on debates on EU-exit-related themes since the 2016 referendum—believe me, from my point of view sitting on the Front Benches, it has sometimes seemed even longer. I find it difficult to believe that noble Lords will not want to question and interrogate me or whichever other Minister is in my place at the time on these negotiations. Indeed, committees of this House have already published three reports on this Bill after fewer than 10 sitting days of this Session.

Let me address the points made by the noble Earl, Lord Kinnoull, and the noble Lord, Lord Liddle, on the role of the European Parliament and the famous Article 218. The noble Baroness, Lady Ludford, is sadly not in her place but we have served in the European Parliament and know the reality of these matters. It is important not to draw unhelpful comparisons between the Commission which, as I said, negotiates on behalf of the 27 member states, and the UK Government on how negotiations are conducted. The information provided by the Commission to the European Parliament is carefully calibrated to not put the EU at a disadvantage in the negotiations. The detail of what information shall be provided to the Parliament is left entirely to the discretion of the European Commission.

The European Parliament will, as this Parliament often does, try to insert itself into the negotiations and want to influence their conduct through its various committees and organs. That is entirely right. It happens in the European Union and I suspect it will happen in this country as well. However, we need to be careful not to overstate what Article 218 does. It is not specific on reporting requirements and that compares very well with the Prime Minister’s commitment to keep Parliament fully informed about the progress of these negotiations. Article 218 does not specify what documents will be available or when.

Of course, it also bears saying that this Bill is not the final word on engagement between Parliament and the Government. As I indicated to the noble Earl, Lord Kinnoull, when we met and as I have said a number of times, the Government will want to start a process of discussions with Parliament into exactly how the various committees and organs in both Houses will scrutinise the work of the Government in this area. In our view, there is no need to set out bespoke statutory reporting requirements in the Bill or impose a statutory duty on a Minister to provide public commentary on the likely outcome of confidential negotiations at a fixed point, as was proposed in Amendment 28. In our view, this risks seriously disadvantaging negotiators acting for the United Kingdom.

I also note that setting out requirements of this type in legislation might well not have the desired effect, as an attempt to pre-empt outcomes and timings can be easily overtaken by events. Let me give the House an example. Last week, I delivered an update in this House on the Government’s negotiations and on Article 50, as required by Section 13 of the European Union (Withdrawal) Act 2018 and the Benn Act which many Members in this House spent many hours telling us was essential. For that debate, which took place at 10.30 in the evening, virtually the only people in the House to debate these matters were myself and the noble Baronesses, Lady Ludford and Lady Hayter. Many of the Members who insisted on passing the Benn Act and introducing these statutory reporting requirements did not trouble themselves to come along and take advantage of the legislation they had passed. There were only three speakers in that debate, myself and the two noble Baronesses.

[Baroness Hayter of Kentish Town]

Does the Minister agree that he did not actually cover the negotiations but covered only why that requirement was no longer needed? He did not touch on the negotiations at all.

[Lord Callanan]

The noble Baroness makes my point very well. The reason why I did not was because there had been no further negotiations since that legislation was passed. There was nothing to update the House on. It illustrates the point that it is bad legislation, and bad to set out these precise timetables in legislation. There needs to be flexibility on behalf of the Government and of course on behalf of Parliament. Of course, the changes to domestic law required by the future relationship treaty will require legislation for their implementation. This will mean, of course, that Parliament will have its say, just as it is having its say on this Bill and on the amendments. It should be noted that the key powers provided by these clauses would be given to the House of Commons. Last Wednesday, MPs rejected a similar power in an amendment in Committee by 344 votes to 255. Noble Lords are welcome to ask the other place to think again about what powers it should have, but I am confident of what its response will be.

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[Baroness Hayter of Kentish Town]

My Lords, there are two parts to what we have been talking about. One is about the mandate and the other is about oversight of the ongoing negotiations. As I think has just been clarified, the EU Commission negotiators seem to manage very well by being given a mandate from elsewhere —that is, from the Council—and reporting back there, so it really should not be difficult. The Minister seemed to be quoting the Treaty on the Functioning of the European Union by saying that the European Parliament did not have the powers that other noble Lords have suggested. I think he will find that there is an institutional agreement going rather further, and that is what gives it the grip.

During the discussion on the mandate, my noble friend Lord Tunnicliffe, who of course is an old hand at negotiating, said that his definition of the mandate that he used to work with was “Whether I’d get away with it”. It sounds as though our Government are trying to do that, which is rather the problem. Given that the Government have a majority of 80 in the other place, I really do not see what they are afraid of by our requiring that they should put the mandate, and report on the negotiations, to a House where they obviously control the numbers. They cannot be that afraid of your Lordships’ House, so it is slightly hard to imagine why they are so resistant to this.

The noble Lord, Lord Hamilton of Epsom, championed the existence of Statements. Those work quite well for someone like me on the Front Bench, because I get my fixed and protected time to question a Minister when they come with a Statement. But if there are only 10 or 20 minutes, or even 40 minutes, on a Statement for Back-Benchers when this House has a plethora of real experts and we are talking about something as detailed as negotiations, our Statements at the moment do not really provide the sort of scrutiny that your Lordships would expect on such a vital matter.

[Lord Hamilton of Epsom]

Does the noble Baroness not accept that the Opposition has Opposition day debates as well, which can spell this all out at much greater length?

[Baroness Hayter of Kentish Town]

I do, absolutely, but I was referring particularly to experts. I will try not to offend my colleagues now, but many of those experts do not sit on my Benches yet are absolutely in that part of the House that we so value. We have great experts from not just international negotiations but industry and trade. They do not just sit in the Opposition and do not have the grip to be able to take a debate like that. Even if what the noble Lord, Lord Hamilton, suggests were written into the Bill, there would be a day’s debate every month or two, or that sort of thing. We think it important to have more than just a Statement without a vote, particularly in the other place.

The grip is needed to make sure that this happens. Until my noble friend Lord Liddle said so, I had not realised that not every Secretary of State was as good at turning up—although I remember an occasion when one Secretary of State did not turn up twice, having been expected by the EU Committee. Again, offers of good will are perhaps not quite sufficient.

What is important in this came in the example about America—I think it was from the noble Lord, Lord Kerr—but also from the right reverend Prelate the Bishop of Leeds. Parliamentary approval actually strengthens, not diminishes, the Government’s stance; that is worth listening to. The taking back of control was meant to be by Parliament, not just by the Government, but we are surely at our strongest where the two work together. The noble Lord, Lord Wilson of Dinton, said two things. One was that when the Government are strong, they can make mistakes; he also urged the Government to work with Parliament, not set themselves against Parliament.

The noble Lord, Lord Bowness, suggested that a simplified version of what we tabled might be more acceptable to the Government. I urge the Government not to turn their back on that. The Minister will have heard, with only a couple of exceptions, the real feeling that we will do our job best if we can do it in a way that is written into the Bill. We will then be confident that the negotiations will be able to fully engage this House and, more importantly perhaps, the other House as this vital matter continues. I have a feeling that we will return to this on Monday or Tuesday but, for the moment, I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

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Whether or not my hypothesis is correct, one thing is quite certain: the Government’s attitude to this will produce a lot of suspicion. There will be a serious suspicion of bad faith on the part of Mr Johnson and his Government, a suspicion that they are not being quite clear about their objectives in this matter. I can think of nothing worse in terms of poisoning the atmosphere of these negotiations than that suspicion, so I think the Government owe it to themselves to now be very frank and transparent and explain to us why this irrational measure has come forward at all. If it was included in the manifesto, why was it included, and why are the Government still holding to it? Without an answer to that question, the accusation and the suspicion of bad faith will persist.

[Baroness Hayter of Kentish Town]

My Lords, at Second Reading I mentioned my “I told you so” speech that I have already prepared for when the Government have to come back and seek some additional time to negotiate the future relationship, the complexity of which we have heard about from my noble friend and others in this debate.

I am not an expert on negotiations, but I hear from those who are that they are not simple. They are brutal, according to my noble friend Lord Liddle in the last debate; tough and vigorous was how the noble Lord, Lord Wilson, described them; and fixed deadlines tie one’s hands too much. Indeed, my noble friend Lord Davies of Stamford said about fixed deadlines at Second Reading on Monday that,

“the one thing you do not want to do is to tell your opponent that you are in a terrible hurry. It also means that you cannot use certain ploys … You cannot walk out for two or three weeks … You cannot try to halt proceedings while you undertake a study of a particular subject”—[Official Report, 13/1/20; col. 513.]

which could be a very difficult subject. The noble Lord, Lord Boswell, described this as the high-wire approach to negotiations.

For a Government who have resisted sensible amendments on the basis that they would tie the hands of negotiators, the prohibition on extending the transition period seems a bit nonsensical. Let me be clear, since not all reports have been entirely accurate, that we know we are leaving the European Union at 11 pm on 31 January. Our objection to the clause is nothing to do with the date of Brexit but is because it places an unnecessary constraint on our negotiators. Why would we tie the hands of our negotiators if another few hours or days could get a better deal over the line? Our EU Committee says that concluding talks by December will be “extremely challenging” and warns—this is something we need to know—that should no extension be agreed by July, it is not clear there is any legal route under the withdrawal agreement to extend it, whether by days or weeks, for whatever essential reason. So that one-line Bill may not actually work: it may work in this Parliament but not on the other side of the negotiations.

Not only that, but the new free trade agreement might need its own implementation period. Processes for customs and VAT, physical checks, rules of origin regulations and schedules—which will be enormous, with all the paperwork—licences and permits, contracts and new systems will need to be set up. Mrs May understood this well and chose the December 2020 date accordingly, but assumed it would be 20 months from when we left. It is now only 11 months from when we leave to the December deadline, but with equally challenging demands—indeed, probably more challenging, given the different regulatory and technical rules on opposite sides of the Irish Sea as a result of the new withdrawal deal. It is very hard to understand why the date for the end of the implementation period has not been changed now that we are leaving in January 2020, rather than in March 2019. The original timeline would have allowed the implementation of the deal, and we now simply do not allow for that.

There is an understandable fear that the hard deadline is not to force the EU to move at speed but because, as the noble Baroness, Lady Noakes, who is not in her place at the moment, helpfully clarified on Monday, a time limit has an “implicit no-deal outcome”. That may be what it is all about, as the noble Baroness, Lady Bennett, and my noble friend Lord Davies have suggested.

One small point on a different issue is that while the Bill disapplies CRaG, it has been pointed out by legal experts in Scotland, I think, that this does not seem to apply to the related EEA, EFTA and Swiss agreements, which were implemented under Clause 6. This means that CRaG continues to apply in those circumstances, so time might be needed for these agreements to pass through CRaG. Will the Minister respond to that issue raised by the Scottish Law Society?

The Government’s majority of 80 leads them to think they do not need to take account of this House. I do not understand why they still seem to need to take account of the ERG, for whom this clause has clearly been inserted. This is unnecessary, as we heard from the noble Lord, Lord Newby. Removing Clause 33 does not undermine the manifesto, because we can still leave and end the implementation period on 31 December. However, as I also said earlier in the week, we will let the Government take ownership of this. We will leave the EU shortly, but on their head be it if the negotiations mean they have to come back to ask for more time. In that case, we will give it with a smile, but also possibly with an “I told you so” note.

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[Lord Warner]

My Lords, I want to add a couple of words to the points made by the noble Lord, Lord Fox, in his amendment. As far as the NHS is concerned, if the Government do not allow more people to come in and work in a highly labour-intensive industry, then they will not be able to spend the money that they are promising to put into the NHS in a way that is useful to patients. But that is not my main point.

My main point is to emphasise the extent to which there is continual movement between the UK and European countries, as part of big research projects in medicine, science and technology. People can freely move around Europe for six weeks, a month, a week or a weekend, and many of these projects have EU money, which has come to this country to be used to set up and run projects, but not all the work is done here. The work may be done with partners in other parts of the EU, and there is a constant flow of people. If we put barriers in the way of that movement around Europe of expert people—and many are not highly paid professors but PhD students who have come to this country—working on joint research projects, not only for basic research but for translational research, we will get ourselves ostracised. We will not be a partner that people want to play with, because it is difficult for people from other countries to move around Europe as part of those projects. We will cut off our nose to spite our face. We need something like this amendment to ensure that mobility and a mobility framework get the attention that they need for the future.

[Baroness Hayter of Kentish Town]

My Lords, the Minister—the noble Baroness, Lady Williams, who is now not in her place—spoke earlier about our seeking reciprocity with regard to children. I assume that the same is true as regards reciprocity for UK citizens abroad and EU citizens here. Thus far, the Government have singularly failed to negotiate successfully to secure the same rights for UK citizens as they have now to work, live and move across the EU. It is true that they can continue to live and work where they are at the moment at the end of the implementation period, but UK citizens will then lose their current right to move elsewhere across the EU—something that is, as we have just heard, at variance with the right of other EU citizens. Therefore, they will be disadvantaged compared with their fellow workers who are EU citizens already here, be they researchers, as referred to by the noble Lord, Lord Warner, artistes, mentioned by the noble Earl, translators, interpreters, freelancers or a number of other specialist staff who tend to move around because of the nature of their jobs. Under the agreement so far reached, they will only be able to live, stay and work in one of those 27 countries but will lose their freedom to move elsewhere.

Therefore, it is vital that we raise this matter higher up the Government’s negotiating aims. This is urgent as well as important. It is time that the Government did more to defend their own citizens’ interests rather more robustly than they have succeeded in doing thus far.

[Baroness Ludford]

My Lords, I just want to add briefly that the wording in the amendment reflects the wording in the White Paper of July 2018 on the future relationship. I do not know whether that White Paper has become “paper non grata” under the present Government but it talked about a framework for mobility providing reciprocal arrangements, which is broadly what the amendment refers to. That is what we want to hear about—a framework for mobility.

The noble Baroness, Lady Hayter, prompted me to think. To the extent that we have EU citizens with settled status, assuming that they do not feel that they have to seek British citizenship, they could be working on a research project based in the UK and, because they will retain their EU citizenship, they will be able to travel around 27 countries. However, the UK citizen may well not be able to do that, so will be second class compared to a work colleague who is an EU citizen and has a passport from one of the EU or EEA countries, unless a mobility framework with reciprocal arrangements and rights encompasses the ability of those UK citizens to work across the EU 27. Therefore, it is relevant to UK citizens living here but of course also highly relevant to UK citizens living in the EU 27. Many face difficulties in getting their residence finalised in an EU country but a lot are also very worried that they are losing their ability to work across borders. The fact is that nothing can be as good as EU free movement. The same applies to the security partnership —nothing is as good as EU membership. Therefore, we are trying to approximate as far as possible what we have at the moment, even though it falls short of that, but a key point is encapsulated in the final words of the amendment, which are:

“including the ability while resident in one state to work with ease across borders.”

My other point concerns pensions, pension uprating and healthcare arrangements, which are absolutely crucial to UK citizens in the EU 27. This is hugely important for the UK economy and for individuals—whether they are EU citizens or, perhaps even more, UK citizens resident here and resident in the EU 27 —who need to be able to move around where their work takes them.

--- Later in debate ---

[Viscount Trenchard]

The noble Baroness is quite right—it is in spite of our being in the European Union. This precautionary principle regulation increasingly affects international pharmaceutical companies, which have said to me that it is important that we should not allow much more of that or we will be a less friendly place for innovation.

[Baroness Hayter of Kentish Town]

My Lords, I do not know about this talk of workers’ rights, but I started at 11 this morning, it is now nearly 10 pm and we are starting again at 11 tomorrow morning—sadly not being paid to be here; I am not a worker, so I cannot use the EU regulations. But that is rather beside the point. I am looking forward to the Minister’s “intellectual thoughts” as the noble Lord, Lord Fox, asked of him.

The Government’s aim is for a free trade agreement—“unfettered” trade—which, if we are not to undercut our competitors across the EU, is bound to involve a level playing field of regulations and state aid rules, as the noble Lord, Lord Fox, said. Michel Barnier has repeatedly stated that Boris Johnson’s ambition of a tariff-free, quota-free deal hinges on accepting this, and EU leaders suggest that level-playing-field commitments will be a precondition for the EU to conclude a free trade agreement. Emmanuel Macron has stated that

“the more ambitious the agreement, the more substantial the regulatory alignment”.

That does not mean all the same rules and institutions—we do not go along with that—but this is about the rules by which we can trade with the EU. Macron also said that a level playing field will make the negotiations “go pretty quickly”.

As we know, the Prime Minister keeps saying “Get Brexit done”, but this also means getting an FTA before the end of the year. If we do not uphold workers’, consumers’ and environmental rights, this will not help the Prime Minister to get his Brexit done. Appearing willing to undermine EU standards—and the Government are seen as undermining them—will immediately indicate to the EU that its companies may face unfair competition from ours. The Government’s deletion of the clauses upholding existing rights has already alarmed the EU and companies there, let alone our own workers and consumers.

Amendment 35 inserts the aims already set out in the political declaration—though of course they are not enforceable in that—where the Government agreed to

“maintain environmental, social and employment standards at the current high levels provided by the existing common standards.”

We are asking for this, from the political declaration, to be included in the Bill.

We have had 45 years of progressive integration of our employment rights and other standards alongside the EU. These regulations are good in themselves for the workers and consumers concerned and for the environment, but they are crucial for an open, fair and competitive continental market on whose growth and resilience all our well-being depends. Furthermore, as has been suggested, any future trade deal must incorporate these high levels of alignment and a level playing field with the EU in order to prevent an alternative vision—the deregulatory US deal—taking primacy over the EU deal. It sounds as though that it is something the noble Viscount, Lord Trenchard, would like, but we on this side of the House would not. Let us keep to the high standards that we have.

[Lord Callanan]

My Lords, I first thank the noble Lord, Lord Fox, for so ably moving his amendment on the issue of close and dynamic alignment on single market rules. I have a sense of déjà vu, because we have of course discussed this subject many times, both during the passage of the previous EU withdrawal Bill and in many debates and Questions in this House. I will probably not surprise him with my answer but I will nevertheless plough ahead with it anyway.

It will, I am sure, not come as a shock to the noble Lord to find that the Government cannot support his proposed new clause in Amendment 35, for the reasons that I will set out. I will say, before that, that we want an ambitious future economic partnership with the EU, one that allows us to be in control of our own laws and benefit from trade with other countries around the world. Adopting his amendment would prevent that. We do not believe that dynamic alignment with future EU rules is in the best interests of this country. It is here in this Parliament, not in Brussels, where decisions should be taken over the laws that govern our country. That is the very essence of taking back control. This view is supported by many of the leading experts in the field, including the Governor of the Bank of England, who recently said in the Financial Times:

“It is not desirable at all to align our approaches, to tie our hands and to outsource regulation and effectively supervision of the world’s leading complex financial system to another jurisdiction.”

European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the EEA relationship has been, and, indeed still is, one that suits its member states exceedingly well. It enables certain non-EU member states to take full advantage of their geographical proximity and their historical trading and cultural relations with the EU to the benefits of both sides of the various borders. It is a model, as we have heard, that our negotiators would do well to follow, not necessarily on the exact detail, which is, after all, tailor-made for the various parties, but in its aim: to retain the alignments that foster trade, and to build on our different natural resources, strengths, patterns of exchange, labour needs, service expertise and investment potential. The negotiations should build on those strengths, just as the EEA has managed to achieve. That, we think, would be to the benefit of the EU as well as ourselves.

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

My Lords, I thank all noble Lords who took part in the debate, but we have been very clear in the political declaration, and indeed in our election manifesto, on our vision for the UK’s future relationship with the EU, which is based on an ambitious free trade agreement.

As I always do, I enjoyed the contribution of the noble Baroness, Lady Quin. We share an interest in the north-east of England. She is an experienced former Minister, doing some aspects of the job that I do now, and I always listen very carefully to what she has to say because she speaks a great deal of sense. She asked about the impact on the north-east of England, something I am of course very interested in. The answer will depend on the future trading arrangements that we negotiate, so I say: come back and ask me again at the end of this year. We have been very clear that we want an ambitious free trade agreement. We want trade to be as free as possible and we will be negotiating hard to bring that happy state of affairs about.

The election has clearly shown, in my view, that the public support the vision that we put forward. It was extensively debated in the election campaign and we won our majority on that basis. To answer the question of the noble Lord, Lord Lea, directly, I say that it is only by leaving the single market that the UK will be able to obtain an ambitious free trade agreement and to strike new trade deals with new and existing global partners. Attempts to remain in the EEA agreement beyond exit is by no means a simple as many noble Lords would have us believe. The EEA is an arrangement that exists at the moment between the EU and a number of EFTA countries—

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[Lord Wigley]

My Lords, the objective of Amendment 41 is to require the Minister to present, both to Parliament and to the devolved legislatures, an economic impact assessment of the potential outcomes of negotiations so that we may know where we are heading.

First, over the past three years, numerous prophecies have been made as to the economic implications of Brexit, most of which were based on guess-work at the time as to what would be the outcome. All those guesstimates are now largely irrelevant. We now know three basic dimensions of our way forward. We know that we shall be leaving at the end of this month and that the implementation period will last until next December.

Secondly, the Government, presumably, know exactly what they want in any agreement reached with the European Union. They therefore will have made their own assessment of the economic impact if they get their way. The House and the devolved Governments have a right to know the detail of any such assessment, as well as a right to know the implications for each of our four nations and for the standard regions—in the amendment this is covered by virtue of a reference to the NUTS areas.

Thirdly, the Government have made it clear that, if they fail to reach and to achieve their negotiating objectives, they will choose to leave without a deal. Again, they have presumably estimated the effect of any such course of action. The implication could be disastrous for manufacturing, exporters, hill farmers and many others. However, surely the Government have, at the very least, a duty to make known the detail of any such estimates. Anyone in the world of trade, agriculture, manufacturing, industry or finance will clearly want to know, at the earliest time possible, what are the official forecasts for these implications, for the basic reason that they are quite fundamental to making any future investment decisions.

If the Government have their own estimates, they are surely duty-bound to share them, and if they do not, they should step back from negotiating a trade deal until they have the basic tools needed to make such a major and far-reaching decision, and to have those tools and the information on a logical and quantified basis. I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, perhaps it is a symptom of the way that Brexit has been handled that the noble Lord, Lord Wigley, even needs to table this amendment; we would have hoped that all this work had been done, published and debated well before any decisions were made. Indeed, I think reference was made yesterday to the Room 101 experience we had when we were called to be shown in secret the so-called sector-by-sector analyses of the impact of the withdrawal. They were of course no such thing—they were A-level descriptions which could have been got from published documents. Now we find that the Government want to head into negotiations on the future of the UK and its constituent parts with no prior appraisal of the impact of a range of outcomes, either on sectors or on geographical areas, and importantly, with no debate with either the industries concerned or with elected representatives of the geographical areas. Yet as we heard in the debate yesterday, important trade-offs and difficult judgments are going to have to be made as we struggle to find a workable trade relationship with the EU.

This should not be done in the dark. We should have full knowledge of the likely impact of each possible approach. The Government should have done this work, but I have little confidence that they have, which is why the amendment tabled by the noble Lord, Lord Wigley, is so relevant.

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[Baroness Hayter of Kentish Town]

My Lords, as we have been told, Clause 38 is essentially meaningless. It is declaratory, I think it was said; a sop to the ERG. Indeed, the Explanatory Memorandum makes clear that the clause makes no material difference to the scope of Parliament’s powers.

However, it is not just neutral. The problem, as we discussed on Tuesday, is that, by having this clause but failing to refer alongside it to the Sewel convention that the UK Parliament will not normally use its powers to legislate in devolved matters without the agreement of the National Assembly—or indeed the Scottish Parliament—it appears to our colleagues there to undermine the devolution settlements.

It is for that reason, as we discussed in relation to Amendment 45 on Tuesday that the Welsh Government wish the Sewel convention to be restated alongside what is in this clause, if it really must remain in the Bill, although it is in fact otiose and it would probably be best for it to go altogether. I see the Chief Whip in his place; he always likes to know what we will return to. That is one point to which we shall return next week.

For the Opposition, however, there is a different problem with the clause, which is that the rest of the Bill does the exact opposite to what it says in it. Virtually all the rest of the Bill dilutes parliamentary sovereignty vis-à-vis the Executive: it takes powers from us, not to give them to Wales or Scotland but to give them to the Government.

Future historians will puzzle over why this clause is here. We are particularly grateful to the noble Lords for giving notice of their intention to oppose that Clause 38 stand part, because it gives us the opportunity to write that into Hansard, so that when future historians—I am a historian—look at why on earth this clause was there, they can say it was there to keep the ERG of the Tory party happy. That does not seem to us to be a very good reason to have it, but if it really must remain, without the reference to the devolution settlements it is in fact unhelpful, rather than neutral.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to noble Lords for their contributions to this part of the debate. I express some concern that the noble Lord, Lord Wallace, wishes to concertina hard ideologues of the right, English nationalists and Brexiteers into one uniform group. That is regrettable shorthand and, indeed, the very fact that his party has adopted that sort of attitude towards the issue of our leaving the European Union might go some way to explaining why it returned after the general election with a total of 11 Members in the House of Commons. There are many, many people in the United Kingdom who are not English nationalists but voted to leave the European Union. There are many people in the United Kingdom who are not hard ideologues of the right who voted to leave the European Union.

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[Lord Keen of Elie]

It is well known that, latterly, Dicey developed views on home rule for Ireland that differed from what might be regarded as the mainstream at the time. Be that as it may, his works on the principles of the constitution stand the test of time and are worthy of being revisited by the noble Lord.

I shall deal shortly with the point advanced by the noble Baroness, Lady Hayter, about the scope of the present clause. The Sewel convention is not itself a matter of constitutional law; it is a political convention, as the Supreme Court made clear in the first Miller case. It is a political convention into which the courts would not intrude. Be that as it may, it has of course been restated in statutory form and therefore does not require repetition. Section 2 of the Scotland Act 2016 and Section 2 of the Wales Act 2017 restated it expressly in statutory form. So it is there on the statute book and does not invite repetition. What is not contained in any of the devolved legislation, for obvious reasons, is a restatement and recognition of the fundamental principle of our constitutional arrangement, namely that Parliament is sovereign, and there is therefore a desire to see that made clear.

The noble Lord, Lord Wallace, suggested that there was some deficiency in the drafting of the clause, but I resist that suggestion. It says, in terms, that the principle of our constitutional arrangement—namely, parliamentary sovereignty—is recognised. It is universally recognised, and that is an appropriate way to express the position of our constitution. In other words, nothing in the Bill derogates from the sovereignty of Parliament, and this clause makes that clear.

[Baroness Hayter of Kentish Town]

Does the noble and learned Lord therefore accept that if there was an addition to restate the convention, that would not detract in any way from what is in the clauses at the moment?

[Lord Keen of Elie]

It would not detract from the clause but it would be an unnecessary repetition. We do not normally put precisely the same provision into statutes two or three years apart. Here we have the provision with regard to the Sewel convention in Section 2 of the Scotland Act 2016, and again in Section 2 of the Wales Act 2017. It is there. It is on the statute book; it exists. That is why there is no need for repetition.

As I say, leaving the European Union is a matter of some significance in the context of our constitutional arrangements, in particular, the repeal of the ECA. It is therefore appropriate in this context that there is an explicit recognition of the principle of parliamentary sovereignty. Therefore, as the Bill implements the withdrawal agreement so that we can leave the legal order that is the European Union, it is appropriate, when disentangling ourselves from those international obligations, that we ensure that there is no concern about the principle of parliamentary sovereignty. It is for Parliament, acting in its sovereign capacity, to give effect to the agreement in domestic law—that is the duality principle, and nothing in the Bill derogates from that principle as recognised by this clause. In these circumstances, I submit that it is entirely appropriate that this clause should stand part of the Bill, and I invite the noble Lord not to oppose it doing so.

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Moved by

[Baroness Hayter of Kentish Town]

46: After Clause 40, insert the following new Clause—
“Regulations: extension of EUWA 2018 sifting provisions
(1) Schedule 7 to the European Union (Withdrawal) Act 2018 is amended as follows.(2) In paragraph 1(3), after “8(1)” insert “, 8A(1), 8B(1) or 8C(1)”.”Member’s explanatory statement
This amendment ensures the sifting provisions in the European Union (Withdrawal) Act 2018 apply to regulations made under inserted sections 8A to 8C.

[Baroness Hayter of Kentish Town]

In moving Amendment 46 I will speak to the other amendments in the group, which essentially have the same effect. Under the Bill there will be no extra sifting procedure of the sort that we established in the 2018 Act, which was able to act as a further check on the Brexit statutory instruments that were laid using the negative procedure. Quite a large number of instruments were recommended for upgrade to the affirmative procedure, and the process helped to identify a variety of drafting errors that could otherwise have left the statute book inoperable in the event of a no-deal Brexit.

Our thoughtful and highly experienced Delegated Powers and Regulatory Reform Committee has recommended a sifting mechanism for this Bill along the lines of the 2018 Act. It would be able to recommend an upgrade from the negative to the affirmative procedure where the regulations were seen to be significant. That recommendation has been endorsed by our Constitution Committee, given the importance and potential breadth of powers in the Bill. It has also recommended that the sifting mechanism should be added as part of parliamentary scrutiny. In particular, the committee concurs with the recommendation of the DPRRC that the powers in Part 1, which are not accompanied by a sunset provision and are thus particularly important, should be subject to a sifting mechanism, as well as those in Part 3 and for the Clause 18 powers.

Rather than duplicate unnecessarily the provisions laid out in the 2018 Act, the amendments tabled in my name seek to make clear that the relevant delegated powers would be subject to these provisions. Given that we are in Committee, I hope that the Minister will understand that any issues in the drafting are the result of not having gone through all detail before, and that he will focus instead on the principle that the wide-ranging powers allowed for under the current Bill should be subject to a greater level of scrutiny. That, as I say, is not only for the sake of Parliament but to protect the Government from any errors.

I know that there may be some noble Lords who will probably disagree, having spent many a long afternoon in the Moses Room, but actually the sifting mechanism in the 2018 Act did work really well, and I think that that was the view of Ministers as well as those doing the scrutiny. Given that, it is slightly hard to see why the Government have not thought to repeat that process in this Bill, particularly given that it has been recommended by the DPRRC and the Constitution Committee. I beg to move.

[Lord Tyler (LD)]

My Lords, my name is attached to the amendments in the name of the noble Baroness, and in addition to those I will speak to Amendment 66A, which is on a more specific question. I endorse entirely what the noble Baroness said. I find it extremely difficult to understand what change of circumstance has made it necessary to depart from the very effective system that we produced in 2018 for sifting. At that stage I was a member of the Delegated Powers and Regulatory Reform Committee and we were strongly in favour of the process because it did a good job.

I noticed just now that the noble Lord, Lord Duncan, who sadly is not in his place, when responding I think to the noble Lord, Lord Whitty, referred to “a change of regime” between the Administration of Mrs May and Mr Johnson. Regime change has a certain curious association in our minds, but if that is the real reason why there has been a change between 2018 and 2019 in the treatment of these matters, then of course that has wider significance because it is well known that the new Government take what I should perhaps call a more cavalier attitude to the role of Parliament, not least because they have a large majority in the other place.

I was contemplating just now the final part of Clause 38, with which my noble friend Lord Wallace was dealing. I did not intervene in the debate because it was so erudite that it went way above my head, but I thought that the final sentence—

“nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom”—

was a bit optimistic. Frankly, there are all sorts of relatively small items that refer to the role of Parliament, which is why the sifting issue comes in. It is rather like arriving at the pearly gates and thinking that it would somehow ease one’s passage to say to St Peter, “Look, I know I’ve committed all sorts of sins, but they’re all relatively minor, and in any case I went on record just before I arrived here and swore that I was actually very much against sin.” I notice we have two representatives of my church here so I hope that they will endorse that. It is really what this clause is saying: “Take no notice of the fact that throughout the Bill there are all sorts of examples where the Government are not really giving Parliament its proper role. Do not worry about it because we say that we are against that.” I find that not very consoling. The sifting mechanism is well tried. It has worked and we find it very difficult to understand why it has been ruled out in these circumstances.

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[Lord Callanan]

The clause that the noble Lord quoted comes under the consequential provisions. As I just said, the consequential power is construed strictly by the courts. I am advised by departmental lawyers that there is an extremely narrow focus; they are amendments that can be made only as a direct consequence of the Bill when it is enacted. I do not think that it in any way provides leeway for a Minister to make things up on the spur of the moment and amend primary legislation. The powers are very strictly constrained to consequential amendments, and this is not an unusual provision. It exists in many other Acts, including those I quoted earlier. We believe that moving the consequential provision to the affirmative procedure would frustrate the ability of departments to make consequential changes before exit day.

As I said also on the other amendments, I am sure that the noble Lord will agree that the use of the negative procedure does not prevent parliamentary scrutiny taking place. Members will still have the opportunity to pray against regulations should they consider it appropriate—and, as I said, there are the restrictions on the use of that power that I mentioned earlier.

I hope that, with the reassurances I have given noble Lords and a fuller explanation of the powers we propose to take, the noble Baroness will feel able to withdraw her amendment.

[Baroness Hayter of Kentish Town]

Let it never be said that we think the Minister would make up something on the spur of the moment.

I have only two things to say. First, I am sure that both our Delegated Powers and Regulatory Reform Committee and our Constitution Committee considered the points that the Minister has just made and nevertheless recommended a sifting procedure, but be that as it may. Secondly—this does not actually affect these particular amendments, because we are talking about the negative procedure here—the Minister said that there would be fewer SIs under this Bill. He also said that it has “narrower powers.” I do not think our noble and learned Members who spoke the other day would see the power it gave, albeit of the affirmative, to Ministers to alter the way ECJ rulings are heard as a “narrow power.” But that, as I say, is not covered by this, although some of the powers in the Bill are rather large.

However, the point the Minister makes about the ability to pray against negative draft orders is significant. I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

3: Clause 21, page 25, line 5, leave out “(including modifying this Act)”
Member’s explanatory statement
This amendment would remove the ability to amend the European Union (Withdrawal) Act 2018 itself by statutory instrument in connection with the Ireland/Northern Ireland Protocol.

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[Baroness Hayter of Kentish Town (Lab)]

My Lords, I beg to move Amendment 3 on behalf of myself and the noble Lord, Lord Tyler. I shall also speak to Amendments 4, 5 and 7. These amendments are all tabled for the same reason: because the Government seem to like deciding things for themselves, with no reference to Parliament. That is possibly why they want to shove us up to York, where our voice will not be heard as loudly as it is in Westminster—although they have missed a trick by not trying to send us to Coventry.

Amendment 5 is needed because when the Government signed the withdrawal agreement allowing the EU-UK joint committee to amend the agreement itself, they failed to allow for scrutiny of the joint committee. The Government have this power under the Bill which is, in the words of our EU committee, a power immune from

“clear scrutiny procedures or parliamentary oversight”.

Clause 21 contains significant new powers to amend by statutory instrument the 2018 withdrawal Act, in what our DPRRC describes as

“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act”.

It is not just unusual for the Government to have that power with only the most cursory of scrutiny to amend primary legislation; it is also unexplained.

Implementing the Northern Ireland protocol may well prove challenging, of course, but we have seen nothing to suggest that this would demand changes to the 2018 Act. Nor does the letter of 16 January from the Minister, the noble Lord, Lord Duncan, provide comfort when it states that the power could not be used to repeal the devolution settlement but be exercised only for the purposes of implementing the protocol and the Government’s policy on unfettered access. If that is the case, why is the power there to repeal? While the Minister says that the power would not be used to repeal any power in the 2018 Act, there is still no reason given as to why it is there, nor why Amendment 3 cannot be accepted, given that it would simply take out from the Bill the ability to amend the 2018 Act by statutory instrument, which the Minister says the Government will do not do anyway.

Amendment 4, in the name also of the noble Lord, Lord Beith, is needed because, as the DPRR Committee states, the Bill contains

“a … potent form of Henry VIII clause … creating a new legal regime that would otherwise require”,

an Act of Parliament. Furthermore, these Clause 21 powers have none of the restrictions which are found in respect of similar powers elsewhere in this Bill or in the 2018 Act. Amendment 4 would insert the same limitation on the Clause 21 regulation-making powers as exists elsewhere in this Bill and the other Act. After all, it would be pretty exceptional for Ministers to be able to create new criminal offences, including with two-year terms of imprisonment attached, to set up public bodies—just referred to by my noble friend Lord Hutton—or to levy taxes, yet the Government want the power the do that. The assurance in the letter of 16 January from the noble Lord, Lord Duncan, that this would be by affirmative procedure is of no comfort to this House, given that such a procedure is effectively never used to stop a Minister doing exactly what he or she wants.

Amendments 5 and 7 are in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, who rightly said at Second Reading that it would be a terrible precedent if we altered the devolution legislation other than by primary legislation. The amendments would simply prevent Ministers using Clause 21 and 22 powers to amend the statutes which embed the devolution settlements. As we know, there is a perfectly viable, acceptable way of amending the Welsh statutes without primary legislation where the National Assembly agrees with the change; that is, through Section 109 Order in Council. We have been given no reason why the Government have written themselves these powers, which I fear can mean only that they want to change the devolution settlements without the consent of the National Assembly and Welsh Government.

Given that, even now, the Government seem determined to push this Bill through without legislative consent from the Welsh Assembly, these powers are understandably fuelling suspicion. I therefore trust that the Minister will accept Amendments 5 and 7 and, by doing so, rule out any chance of the Government trying to amend the Government of Wales Act without the consent of the National Assembly.

The Minister knows full well that the Assembly is due to debate its legislative consent Motion tomorrow. It would be shame—in fact, it would be more than a shame; it would be a constitutional landmark and a bad one—if this consent Motion were to be withheld due to the powers in this Bill, which appear to threaten the Government of Wales Act. Amendments 5 and 7 are therefore of some consequence.

We have been given no satisfactory explanation for why Parliament should give Ministers powers to amend by order the withdrawal agreement, the 2018 Act or the devolution statutes. Frankly, unless and until we have such an explanation, this power must come out of the Bill. I beg to move.

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[Lord Duncan of Springbank]

The noble Baroness is right to draw this to our attention. It is not the Government’s plan in any way to seek to surprise any of the devolved Administrations on these matters. It will be necessary, as matters arise from the negotiation’s focus on the Northern Ireland protocol that have an impact on Wales or Scotland, to ensure full dialogue with the Welsh, the Scots and the wider Northern Ireland community to ensure that they are fully aware of why these matters are necessary.

The structure that we have traditionally used is the Joint Ministerial Committee. As I said a few moments ago, our purpose is to ensure that the technical discussions are dealt with primarily at the level of technicians, to enable us to find the correct way to ensure we are in full conformity with our international obligations in good time within calendar year 2020. On that part, the Government will fully commit early and engage often on these matters to ensure there is neither a surprise nor a disappointment in these matters. Again, I stress that these are elements that will be required to deliver the Northern Ireland protocol itself. It will not be in any way an endeavour to try to reach beyond, into the current statutes within the Wales Act or the Scotland Act. That is not their purpose, and indeed they cannot do that.

[Baroness Hayter of Kentish Town]

I thank the Minister, but he is struggling. I have three points to make.

First, this is political. The Minister knows jolly well that he should be making these amendments, and No. 10 is telling him that he cannot. He must have heard from across the House that there are serious concerns about two elements. One is regulation-making powers, and the other is this very important one concerning Wales in particular, as we have heard from the Welsh accents today. A Government who had not been told by No. 10 to make no changes would have made some changes, and I regret that the Minister finds himself in that position. His answers are, frankly, inadequate. He says that this is all going to happen in 2020, but if I am right—and I look to be reassured that I am—there is no sunset clause on these powers, so we are not just talking about this year. We are talking about powers going well into the future.

As the Minister has heard, there is deep concern in your Lordships’ House about the Henry VIII powers and the ability to amend an Act and bring matters such as criminal offences or setting up public bodies which otherwise could be done only by an Act of Parliament. We have heard concern from the noble Lords, Lord Tyler and Lord Howarth, and the noble and learned Baroness, Lady Butler-Sloss, who used the word “unacceptable.” She said that there are no curbs on these powers. The noble and learned Lord, Lord Judge, took us back to Magna Carta—before my time—and the importance of things such as taxation not being done by ministerial fiat; and that is what we are being asked to give here. That is one side of it. As the noble Lord, Lord Beith, said, keeping that boundary between what Parliament can do and what a Minister can do is key.

The second aspect is Wales. Maybe it is because the Minister is Minister for Northern Ireland and Scotland but not for Wales—or, he is indicating, for only a little bit of Wales—that he does not understand. He has the father of Welsh devolution here, the noble and learned Lord, Lord Morris. It is worth hearing about how it was implemented and about the trust, or lack of trust, at the moment. Here we are, a day before the Government ask Wales to give its legislative consent to this Bill, being told that the Government want to do things without the consent of Wales because of some spurious things that Section 109 does not go far enough on— although we have not heard examples—or because the international direction is not covered, even though the protocol is an international obligation. The most regrettable thing is that the Minister is saying, “Take me out: do this by a vote,” because he will not bring back an amendment at Third Reading. That is the sign of a closed mind. I regret that.

I am not, sadly, going to test the opinion of the House, but I leave the Minister with the words of warning from, I think, the noble and learned Lord, Lord Judge: test us on this, and we will vote down those affirmatives. That would be much more serious in the long term for the way government works, and I really do not advise that. But for the moment, I beg leave, with great sadness, to withdraw the amendment.

Amendment 3 withdrawn.

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Moved by

[Baroness Hayter of Kentish Town]

15: Clause 30, insert the following new Clause—
“Parliamentary oversight of progress in negotiations on the future relationship
After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—“13C Parliamentary oversight of progress in negotiations on the future relationship (1) A Minister of the Crown must, within the period of 30 days beginning with the day on which this Act is passed, make a statement setting out Her Majesty’s Government’s objectives for the future relationship negotiations with the EU.(2) A Minister of the Crown must, before 15 June 2020 and every two months thereafter until IP completion day, make a statement setting out the status of Her Majesty’s Government’s future relationship negotiations with the EU.(3) A statement under subsection (2) must include—(a) a report of the negotiations carried out to date or since the last statement, and(b) a declaration of whether, in the Minister’s opinion, agreements on trade and security which are consistent with the contents of Parts II and III of the Political Declaration setting out the framework for the future relationship between the EU and the United Kingdom can be concluded and ratified before IP completion day. (4) The requirement to make statements under subsection (2) lapses if—(a) agreements on trade and security are concluded and ratified before IP completion day, or(b) a Minister of the Crown makes a statement to the effect that the United Kingdom will not conclude or ratify agreements on trade and security before IP completion day.(5) A statement under subsection (4)(b) must contain details of Her Majesty’s Government’s proposals for mitigating the absence of trade and security agreements with the EU.””Member’s explanatory statement
This amendment requires a Minister to make an initial statement setting out the Government’s objectives for the future relationship negotiations and then provide regular updates on the progress being made. If no future relationship can be negotiated before the end of the implementation period, the amendment would require a further statement to outline proposed mitigations.

[Baroness Hayter of Kentish Town]

My Lords, this is perhaps one of the most significant amendments before your Lordships’ House. It deals with a major constitutional issue—the accountability of the Executive to Parliament —and with matters of prime concern to our country’s future: that is, the trading, security, diplomatic and cultural links that we build with our close allies and close neighbours across the continent.

The trade talks in particular will have major implications for the regions and nations of our country, and for different sectors of our economy. Despite this, the Government seem to want to listen to no one. Business has been pleading with Ministers to involve the relevant businesses in the trade talks, with alarmed reactions over the weekend, as we have all seen, to the Chancellor’s statement that there will be no alignment on EU regulations going forward, diminishing any chance of frictionless trade.

We have heard from the food and drink industry about its fears, both for particular parts of the industry but also with wider implications of likely food price increases. Indeed, it even talks of the death knell of the concept of frictionless trade with the EU. Agriculture, the motor industry and manufacturing are all worried about jobs, investment and their competitiveness in their vital EU markets. Despite that, they feel excluded from the Government’s thinking. As the CBI says, businesses need to be brought into trade talks with both the EU and the US, and it calls on government to work with business

“closely, comprehensively and transparently throughout every stage of negotiations, from mandate setting through to implementation.”

It is right—as are consumers and farmers, whose futures are at stake.

Shutting Parliament out of the discussions on the objectives of, as well as the progress on, negotiating talks, means that it is almost impossible for MPs to represent and answer external concerns that are brought to them on a daily basis. It seems clear that that is exactly what Ministers want to shut out: any voices that conflict with their ideology or which bring them practical problems about the implementation of new rules and checks, and tariffs or indeed non-tariff barriers. No wonder that some think that this is about allowing for a final no-deal relationship at the end of December: a free-for-all, WTO basis for our trading, with immense risks to part of our industry and regions.

In the election, the future of UK plc was voted into the hands of the Government. However, in our system of democracy, that does not mean that the Government should not be accountable to Parliament and should not get its plans approved by Parliament, as all their other plans are, via debate, a vote on the Queen’s Speech, and votes on their Bills, which are enacted only with the agreement of Parliament. Here we are talking about something else: the preparations for a treaty which will affect our living, working, trading, policing, security and environmental relationship with those close friends and near neighbours—decisions which will, one way or another, affect every citizen now and in the future.

So it is perfectly normal to say that, just because the treaty will not be a Bill, that is no reason not to have the equivalent of Second Reading and Committee before we arrive at the final Third Reading equivalent—that is, the final treaty, which will come to Parliament for approval only at the end via the CRaG. At that ratification stage, it is basically too late to say, “Well, actually no, not really—this bit doesn’t work”, “This affects our industry” or “That affects a particular region”. It will be too late then to make changes to the treaty.

So, without this amendment, which gives Parliament a say, Parliament will be shut out of these crucial talks, other than through the odd take-note debate or response to a Statement. That is not enough for your Lordships’ House, and it is certainly not enough for the elected House of Commons. We must ensure that the Commons has some real input throughout the process and, crucially—something that is allowed for in the amendment —if a December deal looks unlikely, the Commons must have some ability to make the Government explain their plans for that eventuality. That is what Amendment 15 would provide. I beg to move.

[Lord Hannay of Chiswick (CB)]

My Lords, I support the amendment moved by the noble Baroness, Lady Hayter. I point out that the amendment on the Order Paper on Report is a considerably reduced text from the one that was discussed in Committee. That is to say, those of us who have put our name to it have listened to some of the Government’s objections—in particular, to their wish to avoid any appearance of a formal mandate—and we have gone for a much lighter procedure, which is now on the Order Paper. So attention has been paid to what was said from the government side.

However, the case for this amendment has been hugely strengthened since Committee last week by the interview that was given by the Chancellor of the Exchequer to the Financial Times last Thursday. In that interview, he made policy that had not hitherto been set out, without, as far as one can see, the agreement of Cabinet, certainly of the House of Commons, or of this House, or even knowledge of what he was about to say. So the case for setting down some process by which the Government need to come to both Houses and explain what they are doing at various stages in what will be an extremely complex negotiation has been greatly strengthened by that action by the Chancellor of the Exchequer.

The position he took on the question of no regulatory alignment is akin to the decisions that were taken by the previous Prime Minister when she went to the party conference in the autumn of 2016 and, in one breath, ruled out the single market, the customs union or any jurisdiction of the European Court of Justice. That did not end terribly well, and I rather doubt whether what the Chancellor of the Exchequer now said will end terribly well either. What he said sounded—and is, if you read the wording—extraordinarily categorical. He did not say that there will not be alignment on all matters—that we will not, as it were, remain in total alignment with European regulations—but that we will not be in alignment on anything.

He is effectively ruling out the possibility for example of the motor industry being put on a system of alignment. That would not be a ridiculous thing to happen, since it has been working to the same standards with its continental counterparts for something like 25 years. However, he has ruled all of that out, so the case for requiring that from now on the Government should at least tell and consult both Houses about what they are planning to do and how they are getting on seems to have been greatly strengthened in the interim by the Chancellor of the Exchequer.

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[Lord Callanan]

My Lords, Amendment 15 would introduce a new clause that would require the Government to publish their negotiation objectives and provide regular reports on the progress of negotiations. As a number of noble Lords observed, this is a different amendment from that which your Lordships considered in Committee, as it no longer contains any formal role for Parliament in approving objectives before negotiations begin. I personally am pleased that the Opposition have accepted that the negotiation of international trade agreements is rightly a function of the Executive. However, this amendment still seeks to impose statutory reporting requirements which, in our view, are simply unnecessary.

The noble Baroness set out what those requirements are, but for the benefit of the House, the amendment would require publication of the negotiation objectives and two-monthly reports on the progress of negotiations, beginning no later than 15 June. The interest in the objectives is somewhat surprising, as the Government’s vision for the future relationship with the EU is already set out in detail in the political declaration; and this is the answer to the point made by the noble Lord, Lord Liddle, in his intervention on my noble friend Lord Barwell. The House has already had ample time to consider this document. It was laid before each House on 19 October last year, and many committees of your Lordships’ House have already opined on it.

As to the two-monthly reporting requirements, beginning no later than 15 June, this could mean a maximum of four reports before 31 December this year. I remind the House that the Prime Minister has already committed that

“Parliament will be kept fully informed of the progress of these negotiations.”—[Official Report, Commons, 20/12/19; col. 150.]

I agree with the point made by the noble Lord, Lord Howarth, that the setting out of reporting requirements in statute, as proposed by this amendment, would be a mistake. The Government will of course, as always, support Parliament in fulfilling its important role in scrutinising the actions of the UK Government in the negotiations, in line with the PM’s commitment. As my noble friend Lord Bridges pointed out, both Houses will have all the usual tools of scrutiny at their disposal.

I listened with interest to the numbers quoted by my noble friend Lord Bridges; he somewhat pre-empted me. I hope he will forgive me, but my numbers are slightly different from his. I pointed out in Committee that Ministers have spent over 760 hours to date addressing these issues in the House. I personally have spent over 230 hours—sometimes it feels a little longer—answering questions and responding to debates in your Lordships’ House. Officials tell me that I am one overnight sitting away from clocking 250 hours by 31 January, which I hope will make me eligible for a medal. Over its lifetime, DExEU has made over 100 individual Written Statements to each House and responded to 23 Select Committee reports, two of them just yesterday. By my calculation, that is an average of one publication every 10 days, not one every two months, and all without any statutory reporting requirements. That, of course, is without counting the various position papers and other publications also made by the department.

I have no doubt that the situation would be the same in the House of Commons. The Speaker heard very clearly the Prime Minister’s commitment to provide information. He has the powers at his disposal to ensure that Parliament can hold the Government to their commitments. Select Committees will continue to question Ministers. They also have the right to request papers. Opposition day debates and the Backbench Business Committee will continue to provide many opportunities for both Houses to consider all these issues.

I remind the House, as I did in Committee, of the risks in creating fixed points to report before knowing anything of the negotiating schedule. At worst, this could mean that Ministers would be required to provide public commentary at a critical point where confidentiality is paramount, thus potentially undermining the UK’s negotiating position. Alternatively, the reporting deadline might fall when there is nothing to say, since progress would already have been reported by other means, in line with the Prime Minister’s commitment. I pointed out in Committee that I saw this just two weeks ago, where a reporting date set in advance by the Benn Act resulted in a grand attendance of three Members—me and the noble Baronesses, Lady Hayter and Lady Ludford —speaking in that particular debate, which we had to hold by virtue of the Benn Act that you were all so enthusiastic to pass.

These reports are at the mercy of events and they can very often end up being completely worthless, failing to assist Parliament in holding the Government to account. The long-standing mechanisms of both Houses to hold the Government to account will work well because they are flexible and can respond to events, unlike statutorily set out reporting requirements. This House is rightly keen to ensure that it will be kept up-to-date on negotiations, but legislating for it in this way is a very blunt and inflexible approach. During our exit negotiations, Parliament has demonstrated clearly that, where a majority feels that it is receiving unsatisfactory information or is concerned by the direction of travel, it has the tools and the will to secure this information. Nothing has changed on that front as we look to the future negotiations. This Parliament already has a lot of power and this amendment adds nothing to it. I therefore hope that the noble Baroness will feel able to withdraw it.

[Baroness Hayter of Kentish Town]

I am quite surprised by the Minister’s response. I thought he really enjoyed discussions with just the noble Baroness, Lady Ludford, and me late at night, that his 230 hours here were just the foothills and he was looking forward to more.

We have had an interesting discussion, including my noble friends Lord Howarth and Lord Liddle, and the noble Lords, Lord Wallace, Lord Bowness and Lord Barwell. I apologise, I did not mean to include the noble Lord, Lord Barwell, in that, because the interesting thing is that in addition to those noble Lords we have our experienced negotiators. The noble Lord, Lord Hannay, has probably put more than 230 hours into negotiating. The noble Lord, Lord Bridges, before he took off—he is back three rows from where he was—negotiated on this, and obviously the noble Lord, Lord Barwell, did too. The lessons that they have pulled from this are different. Of course, two of them were part of the Executive, so it is no wonder that they do not want this extra parliamentary scrutiny.

European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Report: 2nd sitting (Hansard) & Report stage & Report: 2nd sitting (Hansard): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, some of the speeches have painted on a large canvas. I would like to focus on the amendment itself. I am reminded of a discussion here yesterday about the possibility—perhaps fatuous—of moving this Chamber to York in the name of reaching out to the population of this country. I mention that because, 20 years ago, in the name of reaching out to the country at large, the devolved Administrations came into being. The 20 years in between have offered enough evidence of the fact that you do not just bring things into being; you support and sustain them by developing a relationship that enhances partnership between the devolved bodies and the United Kingdom Parliament. I wish that people on other Benches would realise just how disappointed people in the devolved areas are about what has happened over the last 20 years and the way in which—begrudgingly, as it seems to them—some concessions and developments have come into being. I just wish people could feel that.

I have three children. When they were growing up, as teenagers, the most important aspect of parenthood that we had to learn was the moment when you establish trust. You move away from authoritarian modes of existence with your own children, and you trust them, even when sometimes they make mistakes. It seems to me that, in this amendment, we are asking simply to give visibility to a stance that we could describe as trust; that is the heart of it. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said, it does not seek to change the provisions of the Bill; it just says that we should trust each other as we go along.

I would be surprised if I am the only one who has had to educate myself, because the new clause proposed by the amendment would, if accepted, go in after clauses that describe the UK-EU joint committee, and it is terribly confusing to talk about the Joint Ministerial Committee in the context of movements that bring that joint UK-EU committee into being. It does not end there, because we are talking about the Joint Ministerial Committee European Union sub-committee. The action we are trying to establish good relations for is what will happen in the discussions with Europe to bring about our ongoing relationship, in the period following the enactment of the Bill. We should therefore remember that we are looking to have these things written into the Bill to apply for a limited period.

My noble friend Lord Howarth is quite right: of course you cannot legislate for the processes of consultation. He went on to say that willingness cannot be legislated for, but unwillingness might necessitate legislation—and there has been unwillingness. There is a lack of empathy. Even the noble Lord opposite spoke about hardness and refusing to accept a position that will create difficulties. That is never in anyone’s mind at all.

I go back to discussions in Committee and the intervention made by the noble Lord, Lord Kerr, who said:

“The best option would be to include representatives of the devolved Administrations in the negotiating teams that go to Brussels when the subject for discussion is going to touch on the competence of the devolved Administrations.”—[Official Report, 15/1/20; col. 672.]


If they are going to discuss the competence of the devolved Administrations, is it not fair and proper that those from the devolved Administrations most affected might be there to add their voice to the discussions? Is that not reasonable? Are we not talking about common sense?

We are looking at this in a binary way, thinking that everybody who has a different view is somehow invested with animosity towards the Government. We are talking about bringing out of all this something that stands up and appeals to people on the basis of common decency and fair play. I am happy to rest my case there.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we strongly support Amendment 17, without which the whole nation of Wales could be excluded from preparing for input into the UK-EU negotiations. As the noble and learned Lord, Lord Thomas, said, and as the letter of 16 January from the noble Lord, Lord Duncan, to your Lordships sets out—I hope people have now got it—the Government have promised that representatives of the Northern Ireland Executive will be invited to be part of the UK delegation and to take part in any meetings of the joint committee discussing Northern Ireland where the Irish Government are involved.

That guarantee is welcome; I do not undermine that at all. But where is the equivalent recognition that, where the specific issues of other constituent parts of the UK are discussed, they too can be at the table, or at the very least be assured that the JMC on EU Negotiations has been briefed and will feed into Her Majesty’s Government’s negotiating position with the EU? The Government are seen as giving scant regard to the devolved authorities’ interests and legitimate role in the negotiation, which is why a statutory role is needed. As my noble and learned friend Lord Morris of Aberavon said, the voluntary way has not worked sufficiently well.

European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

20: Clause 38, page 37, line 27, after “Kingdom” insert “, acting in accordance with the conventions relating to devolved power set out in—
(a) section 28(8) of the Scotland Act 1998, and(b) section 107(6) of the Government of Wales Act 2006,”Member’s explanatory statement
This amendment alters the statement on parliamentary sovereignty to take note of the Sewel Convention, as enshrined in the Scotland Act 1998 and Government of Wales Act 2006.

[Baroness Hayter of Kentish Town (Lab)]

The intention behind this amendment is to provide a key reassurance to Scotland and Wales. As we know, Clause 38 as it stands is pretty meaningless. As we said in Committee, it was added basically as a sop to the European Reform Group. However, as the Explanatory Notes make clear, the clause makes no material difference to the scope of Parliament’s powers.

The problem with it is more what it does not say in that it fails to refer to the Sewel convention—the convention that the UK Parliament will not normally use its powers to legislate on devolved matters without the agreement of the National Assembly and the Scottish Parliament. Therefore, this stand-alone restatement of what I would call the bleeding obvious in regard to Parliament, without even a nod to the conventions, appears to backtrack on the devolution settlements.

The Welsh Government will therefore wish the Sewel convention to be restated. The noble and learned Lord the Minister said last week that that was not necessary because the settlements are already written into law. Perhaps they are but, for the same reason, there is also no need to restate parliamentary sovereignty. The problem is that doing one without the other gives the impression that the convention is being downplayed, and that is not helpful. I think I am right in saying that the Welsh Assembly, even at this moment, is debating legislative consent, and the rejection of this amendment will not be taken well by that gathering. For all sorts of reasons, it would be a poor precedent for this Bill to be the first to be passed without legislative consent from the Welsh Assembly.

The Government could decide to do what the noble Lord, Lord Newby, urged in Committee and take out Clause 38 altogether. That certainly would not detract from the Bill. They could still do that or they could accept this amendment. Either move would offer comfort to each of the devolved authorities that our departure from the EU was not being used to take back any powers or activities from their purview. Such reassurance, I know, would be welcome. The clock in Wales is ticking. I hope that the Minister can accept the amendment. I beg to move.

[Lord Bruce of Bennachie (LD)]

My Lords, I have added my name to the amendment and shall explain why. The noble Baroness, Lady Hayter, has made it clear that in a sense this clause is superfluous, but it is superfluous in a slightly sinister way. It asserts the sovereignty of Parliament and effectively says, “Therefore, this Parliament can always overrule the devolved legislatures.” We know that to be sovereign law but putting it in a Bill rubs salt into open wounds. Scotland and Northern Ireland have already refused consent and it is expected that Wales will vote today to do the same.

Over the last 20 years we have developed what is described as a quasi-federal constitution, but it is not federal; it is unitary, and Parliament, or Westminster, is sovereign. That is a fact. However, the whole point of the Sewel convention was to try to give comfort and reassurance to the devolved legislatures that they have a standing and a status that Westminster will take into account and acknowledge, and in all circumstances do its best to accommodate. It is a convention, not a law. That is obviously the argument as to why we should maybe move towards a federal constitution, which would effectively confer these conventions into law. I welcome the fact that the Labour Party is now engaged in serious consideration of federalism, which has been a long-standing policy aspiration of the Liberal Democrats. Quite genuinely, we should work together on a cross-party basis to develop the thinking behind this.

The Minister’s words may matter—not just the terms of the legislation. There should be a sense of concern that, as powers come back from Brussels to the UK, those powers that do not return directly to the devolved legislatures and Administrations will come to the central UK Government and effectively weaken the existing devolution settlement, unless there is a genuine spirit of co-operation where the devolved Administration’s views are properly weighed and taken into account. If the Government simply say, “We brought back control to a sovereign Parliament. Whether you like it or not, this Parliament can do what it likes and we intend to do so”, that is not a good way to take the UK forward.

I do not necessarily subscribe to the view that Brexit makes the break-up of the United Kingdom more or less likely. The pain and disruption of Brexit might well discourage people in Scotland and Ireland from wanting to add other disruptions to it; I do not think it is as clear and simple as that. It behoves the Government to show a genuine engagement with the devolved Administrations; not just to use sweet words but to look for practical solutions that will ensure that the devolved Administrations are taken into account.

If the Government turn around and say, “We hear how you voted but we are carrying on regardless”, that will not provide comfort and confidence that devolution is here for real and will develop. It requires the Government to show a lot more accommodation. I agree with the noble Baroness, Lady Hayter, that there are two ways to resolve this. The Government could simply repeal the clause and leave the Bill vacant on this, or they could accept the amendment. To do neither of those things would leave people in all the devolved areas very suspicious of the Government’s intentions.

--- Later in debate ---

[Baroness Humphreys (LD)]

My Lords, I have not added my name to this amendment but would like to register my support for it. Twelve months ago, to this week, Vaughan Gething, the Welsh Cabinet Secretary for Health and Social Services was asked: if the Senedd refused to grant consent to an Act of Parliament, could it be overruled by Westminster? His reply was interesting. He said that the ability of the UK Parliament to override a measure made in any part of the UK is one of the mischiefs in the UK’s constitution that needs fixing. I do not for a moment suggest that we begin the fixing process today, but I cite his words merely as a fairly accurate summing up of the situation in which we find ourselves today.

The exclusion of a reference to the status of the devolved Administrations from Clause 38 appears deliberate. It seems designed to ensure that the devolved Administrations have no role to play in the UK’s withdrawal from the EU. It enshrines, by this omission, the inequality of the power between the nations of the UK. The inclusion of Amendment 20 in Clause 38 would go some way to redress the balance and ensure that the devolved Administrations could represent the views of their respective nations in this massively important process.

I am a passionate advocate for the Senedd. I strongly believe in the principles of devolution, as do my colleagues on these Benches. The Senedd has given Wales a voice and a feeling of nationhood. The exclusion of this amendment could lead to the perception of both being taken away. Accepting this amendment would go some way to preventing those losses.

[Baroness Hayter of Kentish Town]

I know it is not normal for me to speak at this moment, but I thought the Minister might want to reflect on this: having heard and followed this debate, the Welsh parliament has just voted not to give consent to the Bill.

[Lord Callanan]

I thank all noble Lords who have contributed to this debate. It is obvious that I have spent so long debating across this Chamber with the noble Baroness, Lady Hayter, that she is now able to predict my replies to these questions, because the Government do feel that this amendment is an unnecessary restatement of the Sewel principles, which are already enshrined in statute. However, I accept the points made both by the noble Baroness and by the noble Lord, Lord Murphy, in Committee last week that it is not the justiciability of the Sewel convention that matters most in these cases. What matters is that the Government continue to uphold the Sewel convention and make sure that the interests of the devolved Administrations and of the people in Scotland, Wales and Northern Ireland are fully taken account of as we leave the European Union. I am happy to make that commitment and demonstrate that we have done so in the passage of this Bill as well. I can reassure the noble Lord, Lord Bruce, and the noble Baroness, Lady Bryan, that the Government have engaged constructively with the devolved Administrations—and the Northern Ireland Civil Service when there was no Executive—throughout the development of this Bill. I am sure noble Lords will join me in welcoming the restoration of the institutions in Northern Ireland—we will now have an Assembly to engage with as well.

We have been discussing this Bill with the Scottish and Welsh Governments, as well as the Northern Ireland Civil Service, since July 2018 and we have incorporated suggestions from those Administrations into the White Paper. We discussed its contents with them in the following months. Following those discussions, the UK Government made significant changes to the Bill, including ensuring that devolved Ministers will have a clear role in the functioning of the independent monitoring authority that will monitor the citizens’ rights provisions in the Bill, restricting the powers in Clauses 18 and 19 from amending the devolution statutes and strictly limiting the number of provisions protected from modification by the devolved institutions to those of a constitutional nature.

--- Later in debate ---

[Lord Callanan]

She is indeed. I hope that at some stage in the future the noble Lord, Lord Griffiths, will repeat the endeavour which failed last night. The noble Lord, Lord Kerr, made a good point. We have already started discussions with Scottish and Welsh Ministers, and I hope that those with Northern Ireland Ministers are to come. I was present at some of the discussions in London a couple of weeks ago. A frame- work was put in place for joint ministerial committees; one on EU negotiations and one on ongoing EU business, which I chair. We will develop those consultations as we go into the next phase, and we are working on proposals to involve them in future negotiations. We will, of course, take that point on board.

We understand the importance of preserving both the spirit and the letter of the devolution settlements and the principles of the Sewel convention as the UK exits the EU. In response to the noble and learned Lord, Lord Morris, I say that international relations are indeed a reserved matter. However, the devolved Administrations do have an important role in implementing these agreements. Any devolved provisions made under the Act will normally be made only with the agreement of the devolved Administrations and we will engage with them on this, as we have always done in the past. The Government are committed to upholding these principles, but this is not changed by restating them in the Bill. Given what I have said, and the reassurances that I have been able to give, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Hayter of Kentish Town]

I thank the Minister, though I am obviously saddened by his response. My noble friend Lord Griffiths clearly abides by the conventions laid down by Lady Griffiths and we would do well to listen to the noble and learned Baroness, Lady Butler-Sloss, who said that we need to listen to what devolved areas are saying. The Government are not doing this: the devolved regions have come to us and said that they are not getting enough of a hearing. I will not repeat what all noble Lords said, but the comments are general. We need to give respect; we need to respect the convention which offers, as the noble Lord, Lord Bruce, said, “comfort and reassurance” and, in the words of my noble friend Lady Bryan, “confidence”. This is all about recognising the convention as part and parcel of our parliamentary system. It does not override parliamentary sovereignty; it is a part of the way we are. It is a terrible shame that the Government cannot see that this detracts nothing from the Bill, but I seek to add it to the Bill. I therefore beg leave to test the opinion of the House.

European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

3rd reading & 3rd reading (Hansard): House of Lords & 3rd reading (Hansard)
Tuesday 21st January 2020 Lords Chamber

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

My Lords, in moving this Motion, I hope that the House will forgive me if I say a few words. I am delighted to say that we are now in the final stretch of our withdrawal from the European Union. Over the past days and weeks, your Lordships have debated the merits of the Bill and I thank the vast majority who have engaged so constructively in this process. It is a testament to the importance of what we do and the experience and expertise that noble Lords have to offer.

I particularly thank my colleagues on the Front Bench—in particular, the Leader of the House and the Chief Whip for their unstinting support, generally—and I thank all my ministerial colleagues. Perhaps I may be impolite and single out two in particular who have done a sterling job: my noble and learned friend Lord Keen and my noble friend Lady Williams, whose support, guidance and efforts in this House have been unstinting. Many other colleagues have helped as well.

I also pay tribute to my opposition counterparts, the two formidable noble Baronesses, Lady Ludford and Lady Hayter. They have worked so hard and kept us on our toes throughout the Bill’s progress.

I also note in particular the valuable work of the Select Committees of this House, so ably chaired by the noble Lord, Lord Blencathra, the noble Earl, Lord Kinnoull, and the noble Baroness, Lady Taylor. As I noted during my Second Reading speech, their scrutiny and insight are most valuable, and their ability to report on the Bill so quickly in order to aid debate is to be commended.

Finally, I pay tribute to those working in my private office—to Bianca Russo and Joe Moore, who have generally exceeded all their hours, even in excess of what the working time directive would permit them to do. I pay tribute, too, to officials across government who have worked tirelessly on the Bill for many months and years, particularly the Bill managers, Oliver Ilott and Hugo Gillibrand. Personally, I particularly thank the government lawyers who have patiently briefed me on everything from glossing, which apparently has nothing to do with paint, to consequential amendments and all the legal technicalities in between.

I would like to take a moment to note that we are disappointed that the devolved legislatures have not consented to those parts of the Bill for which we sought their consent. I want to be clear that the Government recognise the significance of proceeding with the Bill without the consent of those legislatures. Nevertheless, we find ourselves in exceptional circumstances. The Bill must proceed so that we can deliver on the referendum result and leave the EU at the end of the month with a deal in place. However, I want to make it clear that we will continue to uphold and abide by the spirit of the Sewel convention. As I made clear earlier today, I look forward to continuing to work with the devolved Administrations and the legislatures on future legislation.

Tomorrow the other place will consider the amendments made in our House. It is, of course, your Lordships’ right and duty to rigorously scrutinise legislation, to hold the Government to account and, if necessary, to ask the other place to think again when noble Lords believe that is appropriate. However, I take this opportunity to remind noble Lords that we received a clear message from the elected House on 9 January. We have had important debates, noble Lords have made their views known and we must now see what the elected House thinks of those amendments. All noble Lords must bear this in mind that, as we prepare to leave the EU on 31 January, and deliver the Brexit that the people voted for. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this is a time for both thanks and regrets. Both are heartfelt and serious. We have a lot for which to thank the Ministers—all five of them, I think—as well as their Whips. They have kept to their script, given us no surprises and worked with courtesy and information to enable the process to proceed smoothly.

The Bill team has performed above and beyond normal expectations. Second Reading and three days in Committee in one week, and two consecutive days on Report, is not what they are taught when they go to the “managing a Bill” lecture. We thank them.

On our side, the team has been stellar. It includes my noble friends Lord Tunnicliffe—near silent but businesslike—Lord McNicol, Lord Murphy, Lord Bassam, Lady Smith, Lady Thornton and Lady Jones and my noble and learned friend Lord Goldsmith, with, as ever, Dan Stevens and Ben Coffman behind the scenes. They are a magnificent troop.

However, our regrets are also sincere. Despite the arguments set out across the House, not simply on these Benches, the Government have turned a deaf ear to improvements to the processes in the Bill; to safeguarding the independence of the courts; to pleas for reassurance from EU citizens; to requests from the devolved authorities—we have heard the results of not listening there; and, indeed, to the needs of refugee children. And now we hear that the Government will use their majority to overturn all four of our reasonable, and reasoned, amendments.

We do not lay that on the Ministers in this House but on their masters—or perhaps even their servant—elsewhere. For the moment, as Ed Murrow would say, “Good night, and good luck.”

[Baroness Ludford (LD)]

My Lords, I too thank everyone involved in the Bill: Ministers, the Opposition, the Cross-Benches, the Bill team and other officials, the clerks and other staff of the House and, as the Minister mentioned, the committees of the House, which provided us with such useful and timely reports. Of course, I also thank the many colleagues on my own Liberal Democrat Benches—too numerous to mention—who have taken part in the Bill’s proceedings, as well as my leader and noble friend Lord Newby, my Chief Whip and noble friend Lord Stoneham, and our adviser Elizabeth Plummer who is, quite frankly, indispensable to us.

Clearly, we would have preferred not to have had this Bill. We on these Benches continue to think that Brexit is a bad mistake and that the UK will, sooner or later, re-join the EU. We feel that this Bill has been improved by the detailed scrutiny and votes in this House that I believe we were entirely right to deliver. We have improved the Bill in two major areas: first, respect for people—the rights of EU citizens and child refugees—and, secondly, respect for the law and the constitution regarding the courts, judicial independence and the devolution settlement. We hope that the other place will consider those carefully, but I am bearing in mind what the noble Baroness, Lady Hayter, has just said. I strongly believe that we have given value for the many days of work we have done on the Bill. I just wish that the Government had been in listening mode.

European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Consideration of Commons amendments & Ping Pong (Hansard): House of Lords & Ping Pong (Hansard)
Wednesday 22nd January 2020 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I am not quite sure why the noble Lord, Lord Callanan, singled me out for mention. I think that I must figure in his worst nightmares—which obviously delights me.

He referred to it taking three years to get the withdrawal agreement approved, but I remind him and the Benches opposite that the failure to approve it sooner was due largely to the refusal of Brexiters to support previous efforts. We remainers do not accept responsibility for Brexit or for the negative consequences that it will entail. We have played our part responsibly in trying to improve the process and the outcome of Brexit, as we have on this Bill.

I am glad that this House was not bullied or intimidated, and that it has improved the Bill. In better times, the thoughtful contributions that we made would have received a more respectful response from the Government—I agree, for once, with the noble Lord, Lord Howarth—but the Government were dogmatically determined to refuse any positive improvement to the Bill. So here we are, and we will see what happens in the months and years to come.

[Baroness Hayter of Kentish Town (Lab)]

Well, I am delighted that the noble Lord, Lord Callanan, has enjoyed this. He has certainly given us some fun on occasions.

The purpose of this debate is to handle Commons “consideration” of Lords amendments. However, as I watched the Commons—after just 60 minutes of debate on what this House had considered with such care—eventually overturn all our five amendments, it was hard to take the word “consideration” seriously. More accurate, as I watched, tweeting as I went, was the reply that I received to one of my tweets from someone who identified themselves only as DeepblueBoy. It read, “That’s democracy for ya!” I guess that it was his way of saying—in line with No. 10’s view, I imagine—“We’ve a majority of 80, so we simply don’t need to heed the House of Lords.”

I regret that. I regret it for the four vital issues that we had raised, covering safeguarding the union with the devolution settlement, safeguarding the independence of our courts and judiciary, safeguarding EU citizens’ residency by giving them a document, and of course safeguarding vulnerable, unaccompanied refugee children. Because we take our constitutional obligation seriously, and part of that is to offer MPs the opportunity to give serious consideration to the issues that we have raised. And the issues that we had raised and sent to the Commons would not have delayed Brexit by one second, would not have affected the working of the Bill or the withdrawal agreement, and did not run counter to any Conservative election promise.

So I regret the damage done in those four areas. But I also regret it, as I think I have just heard from my noble friend Lord Howarth, for what it says about the new Government—that No. 10 has decided not to listen, whether to the devolved authorities, to experienced judges and senior officeholders, or to other experienced Members of your Lordships’ House. I will just point out—my noble friend Lord Liddle told me this; I had not done the numbers—that in all the votes that we had, the Conservatives had a larger vote than the combined votes of the Liberal Democrats and the Labour Benches. So this was not a political divide; that side of the House still outnumbers us. It was, of course, with the all-important independent Peers that these results were won—an important consideration.

If this is to be the pattern of this Administration, breaking what I think are the conventions, including the recognition that in a bicameral system legislation is meant to be a dual responsibility, then I fear that we are in for an unfortunate time. Let us hope that this is a one-off as a result of the recent election and that normal service will shortly be resumed so that this House can play its full scrutiny role, secure in the understanding that all differing views will not simply be cast aside. As David Davis MP recognised in the other place, there was even a consensual way forward on the CJEU issue, crafted so carefully and expertly, as we would expect, by the noble and learned Lord, Lord Mackay of Clashfern. It would have made sense for the Government to have swept up that solution without even having to give credit to anyone but one of their own. It was not to be, but I hope that they will now take up his new, generous and learned offer.

For now, the Government will have their way. In future, I hope that dialogue and compromise will once again be possible, perhaps even—who knows?— with the noble Lord, Lord Callanan, perhaps in a different guise.