EU Exit: Future Relationship White Paper

Baroness Hayter of Kentish Town Excerpts

Thursday 12th July 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I thank the Minister for repeating the Statement. I obviously have not had time to read the document. It was given to journalists at 9 o’clock this morning. The MPs did not even get it when they should have started, but I did, so I thank the Minister. I have had an hour with the document; we know how to do things in this House. Because I have not had time to read the whole thing I will leave detailed comments to our debate on 23 July—assuming it is still in play by then. The three-page Chequers document having failed to survive three days of Cabinet unity, I hope that this 98-page document perhaps survives 98 days.

It is of course welcome that we now have a negotiating proposal—perhaps some 12 months overdue—and I am pleased that it is more comprehensive than the Chequers statement, acknowledging the importance of services, data issues, broadcasting, justice, security and other issues highlighted in the reports of the Lords EU Committee. We look forward to a second White Paper foreshadowing the withdrawal and implementation Bill next week.

In today’s foreword, the Brexit Secretary talks of achieving agreements that are “unprecedented”, “unrivalled” and “unparalleled”. Given that we will be asking our European partners to break with their conventions and legal norms, it might have been advisable for the Government to set out such detail rather earlier. Furthermore, it would have been better if, as in the Monks amendment passed by your Lordships’ House, the Government had sought Parliament’s endorsement of their negotiating mandate before discussions with Brussels. That would have given real authority to Mrs May ahead of her talks.

The Chequers paper was a rather miserable little “concord”. It had nothing on services, despite the UK being the world’s second-largest exporter of services, with £63 billion of non-financial and £27 billion in financial services being sold in the EU and comprising 80% of our economy. Luckily, though, services have found their way into the White Paper with plans for an “ambitious economic partnership”, with,

“continued and relatively liberalised trade in services”,

and mutual recognition of professional qualifications, the Government acknowledging the importance of access to talent, the ability to move people across borders—including fly-in, fly-out—and cross-border data flows, as well as the needs of the creative industries.

The White Paper wants the new economic and regulatory arrangements to be based on autonomy of each party over decisions regarding access to its markets, with a bilateral framework of treaty-based commitments to underpin the operation of the relationship, respecting the regulatory autonomy of both partners. Whether this amounts to something acceptable to the 27 members of the single market, especially as the White Paper also rules out passporting, which will exclude EU nationals and firms from access over here, is, I contend, a big question. It will be vital for our future relationship to encompass and safeguard our wealth-creating, tax-paying service sector, so what assurance can the Minister give that this White Paper approach will achieve this, and will be acceptable to our European partners?

With regard to EU migration, the Leader of the House said on Monday that,

“no preferential access will be offered to EU workers that is not on offer also to other trading partners”.—[Official Report, 9/7/18; col. 813.]

Today’s Statement confirms this, saying that the approach to EU mobility will be in line with that for other trading partners. Obviously, at present the arrangements for EU workers are very different from those with any of the 57 countries with whom we have trade agreements via the EU and which the Government want to continue. Are the Government therefore saying that in future workers from South Korea, for example, or any other of our trading partners will have equal access to jobs as do EU nationals? Or is Dominic Raab right when he said on the “Today” programme this morning that whether EU citizens would get special treatment was “subject to negotiation”—in which case, why is it not part of the negotiating proposals? Will the Minister clarify which of these two is the Government’s intention?

The Recruitment & Employment Confederation, for example, has stressed that:

“Mobility needs to form part of the exit agreement”,


including temporary and seasonal roles. For example, it wants the right to work to be attached to the individual, so that they can move from job to job as their career moves, and not be attached via sponsorship to a single employer or the promise of a permanent contract. Meanwhile, any move to put EU workers on a par with those from far-flung countries would not be well received by the food and drink industry, highly dependent on EU nationals. Business needs to know about this and soon. What is the position of the Government?

A central tenet of the White Paper is to keep the UK in a free trade area for goods, to help create a frictionless border and reduce supply-chain worries, but there are two big problems with this. First, part and parcel of many goods is the design, the IP and the servicing of those products. An example is Rolls-Royce engines, where the maintenance, the servicing, the training, the data exchange and IP are bound up with the straight export of physical hardware. It is not that easy to distinguish between the two. Secondly, the proposed mechanism, what is called a facilitated customs arrangement, rather makes Heath Robinson look simple. It expects VAT, standards, numbers, rules of origin details, safety and hygiene all to be checked by remote, high-tech and yet to be developed software. I have my doubts.

The negotiation on future relationships with the EU are of immense consequence to Gibraltar as well as to the devolved authorities. Will the Minister therefore reassure the House on their involvement in drafting the White Paper and confirm that Gibraltar and the Scottish and Welsh Governments are content with its content and will be fully consulted as negotiations continue? We all want a successful outcome to negotiations on our long-term relationship with Europe. It is our closest neighbour, our ally and our largest trading partner. It is key that the so-called European Research Group—it may be a group but it is not European in outlook, nor is research its methodology—does not derail a deal that could be in the national interest. The White Paper may not be the right answer—we have yet to digest it—but the Minister would be wise to heed the words of his noble friend Lord Hague, who wrote that hard-line Brexiteers need to realise that the type of Brexit available is constrained by three factors: the current parliamentary arithmetic, the needs of big manufacturers for frictionless trade, and the complex realities of the Irish border. He warned that fighting against that reality, a la David Davis, Boris Johnson and the ERG, with no alternative is an “indulgence not a policy”.

Labour has an alternative, within a customs union and with a proper agreement on services, but for now our attention will be on what has been published today. We will see whether it meets our tests—to preserve and grow jobs, to maintain standards in the environment, to share prosperity throughout the country, and to safeguard peace in Northern Ireland. I look forward to our longer debate on 23 July on all that.

[Baroness Ludford (LD)]

My Lords, naturally it is a landmark moment that we finally have a government position on Brexit after more than two years, but that exhausted sense of relief is tempered by a huge number of caveats. The first of these is that it has in fact not calmed tempers within the Conservative Party but ignited an all-out war within the governing party: strong and stable this plan is not.

I will have to mix my foodie metaphors. On Monday, I said that the Chequers plan looked like a series of fig-leaves—over the sovereignty of Westminster to reject EU regulations, over the autonomy of the UK legal order, over the pretence of business-friendliness—and I maintain those critiques now that we have the White Paper. However, in addition I suggest that the White Paper describes not a soft nor a hard Brexit but a scrambled Brexit. This is exemplified by the farce of the Secretary of State for Exiting the EU starting his Statement in the other place before MPs had a copy of the White Paper. He actually tried, after the uproar, to suggest that the clerks might be to blame, but actually the Statement is predicated on being delivered before the White Paper is published. It says:

“Shortly, we will publish the Government’s White Paper”,


on Brexit. So it was always intended that the Statement would be made before the White Paper. I think this is executive arrogance rather than taking back control for Parliament.

The scrambled incoherence of the White Paper is exemplified by the suggestions on the agri-food sector. Page 16 of the White Paper talks about,

“a common rulebook for agriculture, food and fisheries products, encompassing rules that must be checked at the border, alongside equivalence for certain other rules, such as wider food policy”.

There are quite a few contradictions there. How is it frictionless trade if there have to be checks at the border? How does that common rulebook for agri-food work if the UK is outside the common agricultural policy and the common fisheries policy? How can you have a common rulebook for some aspects of food but equivalence for other aspects of food policy? Perhaps the Minister will explain and unravel some of that. The fact is that the facilitated customs arrangement is baroque, complicated and bureaucratic; it is likely to collapse under the weight of its own contradictions.

As the noble Baroness, Lady Hayter, said, how on earth can you separate goods from the services that are essential to their production, whether that is legal services, software, intellectual property or others? There is also the serious worry about the potential for fraud and smuggling with these differential tariffs that are meant to be applied at the border; that is leaving aside the question of whether the EU will agree to operate its intended side of the arrangement.

Michel Barnier is surely right. He said that only staying fully in the single market and the customs union can guarantee frictionless trade, yet the Government maintain this claim of “frictionless trade”. That is an absolute term; it does not mean a little bit of friction—it means no friction. How do the Government intend trade to be frictionless? How can there be an independent trade policy, which is alleged in the White Paper, if the UK has committed itself to a common rulebook, including on agri-food products? How will that work when the US invites us to accept the famous bleached chickens and GM food?

The cakeism which runs throughout this White Paper is exemplified by the comments on services—a massive hole in the plan—which are 80% of our economy, and which we do not intend to be part of the single market. When one thinks of the efforts previous Conservative and other Governments have made to try and deepen the single market in services, this is a betrayal of everything that Mrs Thatcher tried to do.

Can the Minister tell me how,

“new arrangements on financial services”,

will,

“preserve the mutual benefits of integrated markets”,

while maintaining the autonomy of rule-making? Those two are surely in contradiction. We will not have integrated markets with autonomous rule-making.

I fear that what the Government are setting up is a further loss of trust in the public. There were so many deceitful statements that came out of the three pages after the Chequers meeting last Friday, which appear to be repeated in the bits of this White Paper which I have been able to read. For instance, the White Paper says:

“We share an ambition for our country to be … more prosperous than ever before”.


But the Government’s own impact statements, which we finally wrestled out of them, all show that we will be poorer. Our economy will shrink; we will have less money for public services. So how will we be more prosperous if the Government have committed to the statements made by the OBR? There are so many statements in here that are just not true, such as that this will,

“return accountability over the laws we live by”,

to the UK Parliament. We will comply with the common rulebook, and yet we will have autonomy over our laws. It does not add up; we are setting up for the people to be let down and it is the people, therefore, who should have the final say on what the Government come back with. Otherwise, the forces that led to the decision in the referendum two years ago will just be magnified.

[Lord Callanan]

I thank both noble Baronesses for their comments. Let me address some of the issues that they raised.

First, I am grateful to the noble Baroness, Lady Hayter, for her comments about the prompt delivery of the White Paper in this House. I am glad to see that our processes are more efficient. When I was preparing for appearing here, I was listening to the exchanges in the House of Commons, so I dashed to the Printed Paper Office here to check that they had sufficient copies to deliver to everybody. Noble Lords were busy collecting them at the time and said they had them available in good time; I am pleased she got hers and I hope the noble Baroness, Lady Ludford, received hers in time as well. There was some information that was released to the press under embargo, as is normal practice, but it was released only once the Secretary of State stood up—

[Baroness Hayter of Kentish Town]

My Lords, I am really sorry, but it was at 9 o’clock this morning.

[Lord Callanan]

My information is that the embargo was not allowed to be lifted before the Secretary of State rose to his feet.

In answer to her other questions outside the process of delivering the White Papers, I can confirm that it is our ambition to reach a comprehensive deal on services. Will it be acceptable to the European Union? I hope so. We approach the negotiations in good faith and we will engage positively. We hope there will be a positive reaction because we want to reach a deal and get an agreement.

The noble Baroness asked about freedom of movement. I confirm that freedom of movement will end and she should be delighted to hear that, seeing as both my party and hers stood on promises at the last election to say that we would end freedom of movement. We have said that, in line with the commitments given in many free trade agreements, we will seek to negotiate a mobility partnership with the EU, but that will not be the same as freedom of movement. This will cover things such as intra-company transfers, students, tourists and service providers, but it will not be the same as freedom of movement.

The noble Baroness made some quite good points about how to distinguish between goods and services; that is something we need to explore further with the EU, but a “good” is traditionally defined as something that physically crosses a border.

The noble Baroness asked about Gibraltar and the devolved Administrations. I can confirm that we did consult extensively with devolved Administrations, including sharing some drafts of certain parts of the White Paper where they were relevant to them. We did take on board and accept some of their comments.

I am not sure where the noble Baroness, Lady Ludford, was going with her fig-leaves analogy. Perhaps this was reference to the agri-foods being able to cross borders, so she will be delighted to know that, with the common rulebook on agri-foods, her fig-leaves will be able to seamlessly cross over the borders.

Again, in terms of delivery of the White Paper, I think I have answered that question from the noble Baroness, Lady Hayter.

I can confirm that we will be outside the common agricultural policy and the common fisheries policy, although we have said that we want to try and agree a common rulebook on agri-foods. We do not believe that will be a barrier. As the noble Baroness knows, the EU itself argues that CAP subsidies are not market distorting within the WTO, so there should be no problem in agreeing our own policies on environmental and CAP protections.

In terms of the common rulebook, we have been clear that we only want to agree a common rulebook in terms of those regulations that are necessary to enable frictionless border controls—or rather, no border controls because of a friction-free border.

In terms of free trade agreements, one of the benefits of the FCA partnership, if we can agree to it, is that it will allow us to set our own tariffs. I confirm that it is a priority of this Government to negotiate a free trade agreement with the US, and the noble Baroness will see references in the White Paper, as well as to our ambition to negotiate similar agreements under the Trans-Pacific Partnership.

In terms of financial services, we have been clear that we want to agree a close future relationship with the EU that preserves the mutual benefits of our uniquely integrated markets and protects financial stability. At the heart of this new partnership will be a set of binding, bilateral commitments that provides certainty and stability of access to each other’s markets and firms, while allowing the UK and the EU to exercise autonomy of regulatory decisions through their own domestic processes.

On the final point about accountability of laws, this will be a different arrangement. As the noble Baroness well knows, under the European Communities Act European law has direct effect in the UK; Parliament has effectively no choice about it. If we agree the common rulebook, then Parliament will have to adopt any future EU goods regulations, but it will have a sovereign choice about whether to do so. If it chooses not to, then we will have to accept the market consequences of that, but it will be a choice that this and future Parliaments will be able to make, so that is a different situation to that which pertains under the existing European Communities Act.

Brexit: UK-EU Relations (EUC Report)

Baroness Hayter of Kentish Town Excerpts

Monday 2nd July 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, as the noble Lord, Lord Jay, said, it is brilliant timing to have this debate just now, almost on the eve of what people have referred to as the Friday Chequers session—or maybe it will be Saturday and Sunday as well. Maybe the best thing would be just to lock the doors. My father used to be the security officer at Chequers and he had the key to the front door; maybe we should lock it and not let them out until the white smoke appears.

We face a serious situation. It is 461 days on, there are 270 days to go, and what do we know? We know there will certainly not be the smooth and orderly Brexit predicted by the Prime Minister. As the noble Earl, Lord Sandwich, said, the country remains divided, the Government having failed to repair the divisions of the referendum between the 48% and 52%. Parliament is divided, leaderless and restless. It is ready and eager to comment on the Government’s plans but they have yet to appear. The Cabinet is seriously divided; it is,

“in a remarkable state of disarray”,

says the FT, with the behaviour of Ministers labelled “bizarre and inexcusable” by the former Deputy Prime Minister, Damian Green. Clearly getting unity among 27 is rather easier than among the Cabinet’s 25. Last week the noble Lord, Lord Bridges, attributed the Government’s chaos and confusion to the Prime Minister’s loss of a majority when she,

“returned to office but not to power … unable to stamp her authority on her warring Cabinet”,

with Ministers,

“lobbing grenades at each other”.

This is a very recently former Conservative Minister describing others as lobbing grenades at each other. Another government aide even wondered now whether the Cabinet were fractured beyond repair.

Yesterday Graham Brady warned that a divided party would let Labour in. I would welcome that; we would certainly sort out this unholy mess. As my noble friend Lady Quin suggested, with all our trade unionists we should be able to do that. Short of that happy day, however, we need leadership and a good deal from the negotiations for the sake of UK plc. We need the spirit of generosity recommended by the noble Lord, Lord Cormack. What we do not need is offstage threats from Back-Bench Tories putting egos above the national interest. I noticed that on Twitter Nicholas Soames has urged one particular miscreant to “put a sock in it”—his words, not mine.

Equally serious is that business is being ignored. So frustrated is business that the directors-general of BusinessEurope and the CBI as well as the general secretaries of the ETUC and the TUC issued a joint statement urging faster progress, while the CBI, the British Chambers of Commerce, the EEF, the Institute of Directors and the Federation of Small Businesses wrote to the Prime Minister protesting at the lack of progress. Rather than telling business to “something off”, it would be rather better if the Government heeded these views of business and those of Standard Life, the Society of Motor Manufacturers and Traders, Cicero, BMW, Siemens, INEOS, the Freight Transport Association—all those other wealth generators and job creators.

It is not just business; voters are being ignored as well. Their refusal to provide a mandate for a hard Brexit has been conveniently overlooked and, unsurprisingly, two-thirds of them think the PM is making a hash of Brexit. Consumers and young people are being ignored, the Government more set on finding a Brexit to satisfy their own warring factions than a Brexit for those young people’s futures.

Trade experts are ignored, especially when they remind the Prime Minister that we export 10 times more to the EU than to China, 25 times more than to Canada and 40 times more than to India, and that therefore any new trade patterns will take many decades to make good losses with the EU. By the way, any idea that a US deal would be great for us somehow overlooks the interests of America—their desire to send us hormone-injected beef and chlorinated chicken and to get their hands on part of our precious 70 year-old NHS, as well as Trump’s current imposition of new tariffs on imported steel and cars.

Meanwhile, Europe is exasperated by what it calls a blurred Brexit, with EU politicians, business leaders and regulators watching in dismay as UK Ministers fail to agree coherent negotiating positions among themselves, let alone present them in the Brexit talks. They, along with my noble friend Lord Whitty, are mystified that two years on, the Government are yet to sort out the divorce, let alone our future trading, security, defence and other relationships.

Unlike the noble Lord, Lord Cormack, I have not met any Finns recently, but an exasperated former Scandinavian Minister said that our Prime Minister had,

“reached the point where she is making contradictory commitments, and any semblance of consistency was lost long ago under the weight of these blurred promises”.

This is serious stuff.

We have all read that Jean-Claude Juncker said:

“We cannot go on with a split Cabinet. They have to say what they want and we will respond to that”.


That brings us to the EU Committee’s excellent report—a gold standard, in the words of my noble friend Lord Lea. It is about the only bit of sense coming out of London at the moment and does the Government’s job of setting out the options for the future, stressing that it is a matter of only weeks before the framework for future UK-EU relations has to be finalised, as that is meant to be part of the October political declaration.

The EU Committee report includes a swathe of practical advice, such as, as we have heard, to expect compromise and that even the simplest model for future UK-EU economic relations—i.e. a free trade agreement—will require acceptance of a degree of regulatory alignment. The report also evaluates the potential options for trade and sets out the criteria against which the White Paper should be judged, as spelled out by the noble Lord, Lord Boswell.

The report notes the CBI’s assessment of the potential impact on SMEs of leaving the customs union and that 150,000 businesses export only to the EU, with no ability to create systems able to deal with border controls. It highlights the benefits that the UK gets from being party to 57 trade deals successfully negotiated by the EU, the loss of which would be highly disruptive, but whose continuation is not guaranteed. In my view, the 46 pages of that report should be compulsory reading for the Cabinet before it heads off to Chequers, because that would ensure the influence hoped for by my noble friend Lord Monks.

The Cabinet might also take some other advice, whether from the expert CER or the noble Lord, Lord Bridges, who calls on the Government to commit to remain completely aligned to EU regulations and standards covering goods and agricultural products, together with zero tariffs and trusted trade schemes to deal with rules of origin, which would help minimise friction in trade and help address the Irish border. He also suggests that we should remain convergent on data sharing, recognise legal contracts and professional qualifications and be party to critical EU agencies, where necessary under the jurisdiction of the ECJ. This is a man who has looked at these things, who has been around the capitals of Europe talking to people and has some sense of what will be possible for both us and them.

Meanwhile, the Law Society worries about judicial co-operation, the European arrest warrant and recognition of family judgments and calls for legal services to be included in any EU-UK trading arrangement, and for a dispute resolution and enforcement mechanism. The transport sector worries about flights, lorry parks, passenger rights and compensation. Architects worry whether they can contract abroad. The creative industry worries about free movement for stars, designers, musicians and IP. The tech sector worries about access to talent. The financial sector worries about everything, despite its preparations, mentioned by the noble Lord, Lord Risby, and as stressed by the noble Lord, Lord Teverson —and we all worry about Northern Ireland.

But all of this is worse, of course, because of the lack of foresight, as described by my noble friend Lord Desai. It is no good threatening the EU with no deal in the face of the Government’s own assessment that GDP could decline by 7.7% over 15 years—let alone Airbus’s warning, as the noble Baroness, Lady Janke, said, in saying that a no deal would lead to,

“severe disruption and interruption of UK production”,

forcing it,

“to reconsider its investments in the UK, and its long-term footprint in the country”.

John Lewis’s chairman described no deal as “unthinkable”, with “grave” consequences. As the noble Lord, Lord Jay, and the earlier report on no deal stressed, the implications for this country of no deal are too serious even to contemplate.

The country is facing a crisis of the Government’s own making. Far from the Brexit negotiations being one of the easiest in human history, we have yet to see the White Paper, or the fisheries, agriculture or immigration Bills. Then there are no moves on security, defence and defence systems and the agencies mentioned by the noble Earl, Lord Kinnoull, as well as finding a solution to the Northern Ireland border or clarity over our future customs arrangements with the EU or our relationship with the single market. As my noble friend Lord Soley says, we are in “deep trouble”.

Our plea today is for leadership and direction, and we are not alone in asking for that. Matthew Parris speaks for many when he says that,

“the office of prime minister is effectively unoccupied”.

My question to the Minister is akin to that of my noble friend Lord Soley. When will his Government put the country before his party’s internal squabbles?

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Monday 18th June 2018 Lords Chamber

[Baroness Ludford]

My Lords, as the noble Viscount, Lord Hailsham, said, it is in the national interest that Parliament should not be faced by a take-it-or-leave-it vote. It must be able to prevent a slide into a disastrous no deal outcome. I say to the noble Lord, Lord True, that is not an arcane interest because many ordinary citizens would be hugely harmed, including those who voted for Brexit, if that happened.

Was not the referendum fought by the leave side partly on the basis of a need for the Westminster Parliament to take back sovereignty? It is truly ironic that many of those who said that oppose a meaningful vote for Parliament now. Indeed, some noble Lords opposite who have spoken want specifically to hobble Parliament by barring it from amending a Motion. This is not a remainer cause. It is not about destroying or sabotaging Brexit—that is a distortion and misrepresentation—but about whether Parliament has a constitutional right and duty to call the Government to account and should have a decisive political role on the course of Brexit. The idea that that undermines the Government’s negotiating position is farcical.

The noble Lord, Lord Spicer, said that the essence of why he opposed staying in the EU is that the nation state is the best unit for democracy, that Britain is the home of democracy and that it offers a forum for accountability. That is the point. That is what Motion F3—I avoid “Grieve II”—achieves. It is not a negotiating power for Parliament but a power to call the Government to account for how they are conducting the Brexit negotiations. Its purpose is to prevent or at least manage a crisis by thinking ahead of that time and what the structures would be. The virtue of writing this into the Bill is that we will then know what mechanisms need to be followed if a crisis arises. As the noble Viscount, Lord Hailsham, said, it is important to give the Commons the opportunity to vote on what the Government apparently agreed last week.

I have great admiration for Dominic Grieve as a parliamentarian and constitutional lawyer of the highest calibre and integrity. He is a loyal Conservative, much to the regret of some of us because we would like him to be a little more of a rebel. I associate myself with the remarks of the noble Viscount, Lord Hailsham, about the character of Mr Grieve and that the hatchet job on him by the Daily Mail was a total disgrace. It showed the degradation of our political media culture and discourse.

The noble Lord, Lord True, said that his amendment was not the best way to accomplish what he wants. I do not need to elaborate any further. It would unhelpfully complicate matters. I will accept the guidance of a former Speaker, the noble Baroness, Lady Boothroyd, on Commons procedure, which I do not understand, that it is necessary to pass Motion F3 to allow the other place to consider how it wants to proceed.

[Baroness Hayter of Kentish Town (Lab)]

My Lords—

--- Later in debate ---

[Viscount Younger of Leckie (Con)]

My Lords, I believe the House now wishes to hear from the Front Bench.

[Baroness Hayter of Kentish Town]

My Lords, we heard a sad story from the noble Viscount, Lord Hailsham, about the saga that has gone on. I say to the noble Lord, Lord True, who said that this was about playing parliamentary games, that no, this is much more serious. If anyone wants to know how big the issue in front of us today is, they should look around the Chamber.

Last week we heard, around the debate in the Commons, that the Prime Minister had conceded that within seven days of the Government agreeing a withdrawal deal with Brussels, a Motion to approve the deal would go to the Commons; and, should there be no withdrawal deal by 30 November, the Government would have to seek approval for their next course of action from MPs—not direction, approval.

We then learned that the various Conservative Back-Bench MPs who were concerned were given to understand that Mrs May would consider how to capture those demands and table the necessary amendment here in your Lordships’ House today. Instead, in the Government’s Motion F1, we have no proposal for a vote on the Brexit deal but simply a vote on a Motion—in neutral terms, I understand from my parliamentary draftsmen advisers that this is not a term that exists anywhere else in law, but be that as it may—that the statement on the deal has been considered. There would be no seven-day commitment or any other time commitment to a vote, no indication of what would happen should the Commons reject the Motion, and no indication that the Commons would have any say over what should follow if there is no deal.

Astonishingly, government Motion F1 gives the elected House of Commons less of a say than the European Parliament will have on the deal. Under Article 50, the European Parliament has to give its consent to the negotiated deal; that is, not just a Motion to say that it has considered the deal—rather, it has to give consent. We want what the European Parliament has: a meaningful vote. I do not know which part of the word “meaningful” the Government do not understand. I am a bit simple-minded because I think it means something that means something; in other words, something happens as a result.

What we want today is really quite straightforward. We want the House of Commons to be able to consider the Hailsham amendment, so we need to pass it today. Moreover, we should pass it without the amendment in the name of the noble Lord, Lord True, as the whole point is to send to the Commons the agreement which Dominic Grieve and others thought they had reached with the Prime Minister. We have not tried to tinker with or improve it, but to place absolutely our support behind the Hailsham amendment which encompasses what they thought they were being offered. That is what this represents and is what we had expected from the Government. So we will not support Motion F4 if it is pushed to a vote.

Let me briefly put to rest the idea that the Hailsham amendment could risk what the Prime Minister and David Davis—perhaps quite rightly, along with the noble Baroness, Lady Evans, today—say they do not want, which is to hamper the negotiations. The whole point is that the vote would come at the end of the process, after the negotiations, to vote on the outcome. It is exactly the same as what the European Parliament’s vote to consent will be: it will be on the final—albeit at that point unsigned—deal.

Perhaps I may also put to rest a misunderstanding that we have heard from Jacob Rees-Mogg—he is meant to be an expert, but never mind. He asserts that Parliament will get its vote on the deal by agreeing or not agreeing to the withdrawal and implementation Bill, which he claims is the device for bringing the treaty into our law. This is fundamentally to misunderstand both that Bill and the deal. Under Article 50, the withdrawal agreement must also take account of the framework of the future relationship between the parties. However, that will not be included in the implementation Bill because it will cover only citizens’ rights, possible payments, Northern Ireland and the transitional arrangements. In other words, the withdrawal and implementation Bill is the divorce proceedings—it is not the long-term relationship. That Bill will not be the confirmation of the withdrawal agreement and is not a substitute for what we are asking for today. Unless and until this Bill guarantees a proper vote on the deal, the long-term future of this country will remain solely in the hands of the Prime Minister and her extremely divided Cabinet, not in the hands of Parliament.

Without the amendment in the name of the noble Viscount, Lord Hailsham, we will be in a position where the European Parliament has to give its consent—that is, to approve the deal for it to take effect. However, the British Parliament would simply be able to pass a Motion that it had considered the deal. What sort of democratic deficit does that leave this Mother of Parliaments with?

This is an area where I am sure that even the noble Lord, Lord Spicer, would agree with me. We agree on very little, although I have to say that every time I see him in his place, I feel the need to sharpen my arguments because I know that he is watching me. I hope that this is not the last time we hear from him, but I think that the one point he would agree with me on is that this Mother of Parliaments should get a sovereign vote on this issue.

The Government have offered us an unamendable Motion on a statement, but no say on the deal itself. As has been made clear, we need the House of Commons to have a say on the Hailsham amendment; it needs to have that in place. However, the only way we can do that is for this House to be able to give MPs that opportunity by passing this amendment. It is then up to them what they do with it.

--- Later in debate ---

[Lord Newby]

My Lords, I am sorry that the Government did not feel able to accept the amendment that your Lordships’ House passed on this issue, but at least we now have a workable amendment.

I have just one question for the Leader. She said that she was confident that the committees would be able to respond “at pace” to the flow of statutory instruments coming before them. I am absolutely confident that they can respond at pace, but can the Government produce the statutory instruments at pace? Furthermore, if 1,000 statutory instruments will be required to implement this Bill when enacted, and given the probability of a transition phase, how many of those 1,000 statutory instruments have to be enacted before 29 March 2019?

[Baroness Hayter of Kentish Town]

My Lords, I can be very brief, because the noble Lord, Lord Newby, has noted exactly the same words as I have—“at pace”. These words alarmed me, because although some of us feel that we worked very hard on this Bill, it is as nothing to what the people on those committees will be doing. I wish them luck.

My question is related to that: when are we expecting the first of these SIs? Now that we have this, we need to move fairly fast to set that up. I very much hope that the colleagues sitting on the other side of the Leader will accept the Motion that we passed today. In that case this would be our last meeting on this Bill. We have already thanked the Bill team again, but it would be wonderful if they did not have to come back. In the meantime, they have at least another day’s work. For the members of these committees, however, their work has just started.

[Baroness Evans of Bowes Park]

My Lords, the Government’s amendments deliver to this House parity with the Commons, ensuring that all the expertise concentrated here will be properly available to provide proper scrutiny of the SIs that come under this Bill. The noble Baroness asked about timing. Once this Bill receives Royal Assent, SIs can obviously start to be tabled. Therefore, we are not quite there yet, but like her I hope that we will be very soon.

These amendments will also ensure that any Minister who disagrees—and I may have misspoken in my opening speech by saying “agree” when I meant to say “disagree”; I put that on the record for clarity—with the recommendations of one or both of the sitting committees has to explain themselves.

I can certainly assure the noble Lord, Lord Newby, that the Government will play their part in ensuring that we have a functioning statute book, and indeed the proposal that has come forward under this amendment—to have two committees in order to expand the work on secondary legislation—will also give the House the ability to do its side of things. We will certainly be working together to make sure that we have the functioning statute book that we want. On that basis I hope that noble Lords will agree with the proposition that the Government have put forward.

Brexit Transition: European Parliament Membership

Baroness Hayter of Kentish Town Excerpts

Thursday 7th June 2018 Lords Chamber

[Lord Callanan]

During the implementation period, we have agreed to establish a joint committee of representatives from both sides, which will be able to resolve concerns if and when they arise. Of course, we have also agreed a duty of good faith on both sides.

[Baroness Hayter of Kentish Town (Lab)]

Might I ask the Minister to quote Article 50 accurately in future? It does not say that we will leave two years afterwards, it says two years afterwards or such date as is agreed in the withdrawal agreement. Given that the Government seem to be quite unable to get that withdrawal agreement anywhere near ready, can the Minister also say—in agreeing to the wording I have just given—whether they have discussed perhaps reverting to appointing Members of the European Parliament, as we used to do, should that be necessary?

[Lord Callanan]

No, we have not agreed to that because we are leaving on 30 March 2019.

Brexit: Negotiations

Baroness Hayter of Kentish Town Excerpts

Wednesday 6th June 2018 Lords Chamber

[Lord Callanan]

No, we have been very clear that we are leaving the single market and the customs union, and we remain optimistic, like the EU, that we should be able to reach an agreement by October.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this is rather a shambles, is it not? In fact, we are reading on the Channel 4 website that tempers within the Government are “fraying”. That is hardly surprising. The White Paper that David Davis said would be the,

“most significant publication on the EU since the referendum”,

is not appearing. I do not know whether the fact that the White Paper has not come out is worse for Parliament and the people here or for our negotiating partners in Brussels. Either way, we need to know what is going on. Will the Minister talk to his bit of the usual channels if I talk to mine and ensure that we have a proper debate on these negotiations immediately after the June summit?

[Lord Callanan]

When the noble Baroness said it was a shambles, I assumed she was referring to the Labour Party’s position on the EU, which, given the statements yesterday and by Keir Hardie on the radio this morning, is a disgraceful shambles—

UK-EU Security Partnership

Baroness Hayter of Kentish Town Excerpts

Thursday 17th May 2018 Lords Chamber

[Lord Callanan]

This is not my area but I am informed by my ministerial colleague that these matters have not been decided yet. I am sure he would be very happy to have a conversation with the noble Lord outside the Chamber.

[Baroness Hayter of Kentish Town (Lab)]

We are delighted with these proposals, even if they are more like a list. Given that mention has been made of the White Paper, can the Minister nudge his next-door-but-one neighbour, the Chief Whip, and ensure that we have a full debate in this House on both the slides and the White Paper?

[Lord Callanan]

I am sure that the Chief Whip has taken careful note of the noble Baroness’s comments.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Callanan]

That is what has been agreed in the implementation period that we have agreed with the EU so far—but it will be the subject of legislation that we will be able to consider.

[Baroness Hayter of Kentish Town (Lab)]

Will the Minister therefore explain why our amendment to allow the ECJ to continue until the end of the transition—the implementation period—was not accepted by the Government?

[Lord Callanan]

Because there will be separate legislation to consider the implications of the implementation period as part of the withdrawal agreement and implementation Bill that we have already announced. We are trying to confine the purposes of this Bill to the originally announced process. I realise that lots of noble Lords want to use this legislation as a way to both influence the legislation and in some cases to prevent the process of Brexit. But we are trying to put forward revisions to the statute that will ensure that European regulations will continue to have effect in British law after the end of the period.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords, I would also like to say a word about giving this Bill a Third Reading, in the absence of a legislative consent Motion from one of the two functioning devolved legislatures, as we heard, obviously. We know that this House regrets that absence.

There is no doubt that we are partly in this position because of the failure of the Government to start their Brexit process by engaging with the devolved authorities. Indeed, there was some six months when the JMC did not even meet, even after the outcry over the initial Clause 11, which had been tabled without consultation, much less agreement with the interested parties.

It was, like much of the Government’s Brexit handling, the result of no pre-referendum consideration of the impact of any withdrawal and indeed, even after June 2016, inadequate attention to this vital area of returning EU regulation. Of course, it was the result—maybe all of us are slightly to blame for this—of not fully appreciating how devolution has fundamentally affected decision-making across the UK. As in the example given by the noble Lord, Lord Kerr, some of this is continuing. Papers are still being produced without the consultation that I would by now have hoped was becoming regular. As I have said, I think, to the Minister, I hope that when this Bill is over, the Government will review the status and the functioning of the currently very ineffective Joint Ministerial Committee.

For now there is, as the Scottish as well as the Welsh Government recognise, a need to look at how to protect an internal UK market even as we pull out of the EU equivalents. Indeed—in a way it is quite funny—the Scottish Government have been the most vociferous about staying in the EU single market, so it is slightly odd that they seem to want to turn their back on an all-UK version of that.

The deal now in Clauses 13 to 15 seeks a way forward, allowing most of the non-reserved powers to be, rightly, with the devolved authorities, while on a temporary basis holding back some of those which may be needed either for trade agreements or for our own internal single market. Consumers and businesses will want to know that they can buy or sell across internal UK borders without safety, product or other regulations being different, such that they lead to border checks or inadequate standards or controls. The example of alcohol pricing across the border is not the same. If you are buying alcohol in Scotland, you know you are in Scotland and it may be cheaper or more expensive. But if you are buying a chicken when you are in Durham, you want to know whether it was chlorine washed when it was produced in Scotland. As a consumer, those products will cross the borders. So there are undoubtedly areas that we will want to sort out, for the consumers, as well as for businesses trading across the UK.

The Bill for now allows for decisions on these temporarily frozen areas to be taken by consensus, but where one devolved Administration disagrees, as we have just heard from the noble and learned Lord, Lord Mackay, their rationale—and indeed the UK Government’s response to their reasoning for withholding that consent—would come to this Parliament. It would not come back to the UK Government, but to this Parliament for consideration and final decision.

As my noble friend said, until very late in the process, the Scottish Minister had been part of these negotiations and appeared content with their direction of travel and outcome. It was at the very last moment that the Scottish First Minister took another view and demanded a veto—effectively a veto over what both Wales and England might do in some of these areas. This is understandable from an independence party that retains doubts about the role of the UK Parliament over any of its affairs.

We on this side of the House support the union. While absolutely defending and championing devolution —who could not, as an old friend of the late and much-lamented Donald Dewar, and indeed the then Labour Government who implemented devolution?— we do not see it as either separatism or proto-independence.

While acknowledging that the SNP does not share our commitment to devolution—and indeed still campaigns for something different—we nevertheless hope, as others have said, that the UK, Welsh and Scottish Governments will convene cross-party talks to broker an agreed way forward, since we regret that the Scottish Government failed to negotiate something to which their Parliament could consent. We live in hope that it might still be possible. There is still time.

[Lord Forsyth of Drumlean]

Could the noble Baroness, Lady Hayter, therefore explain why the Labour members of the Scottish Parliament voted in the way they did, to support not giving legislative consent and to support having a Bill, which the Presiding Officer had said was ultra vires?

[Baroness Hayter of Kentish Town]

My Lords, the wonderful thing about devolution is that it happens within our political parties, just as it happens across the UK.

There is still time for some finessing. Perhaps we can, in the coming months, find an alternative way forward to the approach now proposed, particularly before any draft regulations are laid before this House— maybe from some of the ideas going around today. If we can find a way forward that commands the support of all the devolved Administrations and thus preserve the spirit of the Sewel convention—which those of us who care about devolution rightly believe is of huge importance—we on these Benches would welcome it. For now, we judge that the package in front of us is a positive way forward, and is thus no barrier to our agreement to a Third Reading.

I should add a word about the clauses on devolution and Northern Ireland, given that, very regrettably, it was not possible to have the same level of political engagement from there as was available to the Scottish and Welsh Governments and their legislatures. Cross-UK frameworks have particular relevance to Northern Ireland, given the Government’s welcome commitment,

“to uphold the Belfast Agreement in its entirety, to maintain a frictionless border between Northern Ireland and Ireland, with no physical infrastructure”,


while ensuring that any regulatory continuity in Northern Ireland to maintain a frictionless border would not threaten Northern Ireland’s place in the internal market of the UK. The future developments of the frameworks envisaged in this package have to respect the wider demands of upholding the Good Friday agreement. We trust that will remain uppermost in the Government’s mind.

[Lord Keen of Elie]

My Lords, I thank noble Lords for their contributions in this debate. We may be repeating some of the ground that we covered at Report, but these are important matters and they deserve full attention. I appreciate that noble Lords want to consider the points made during the debates on the Motions in the Scottish Parliament and the National Assembly for Wales yesterday.

I understand the intention behind the amendment of the noble Lord, Lord Thomas, but I do not accept that the amendment adds anything that is not already achieved by the Bill and by the intergovernmental agreement. This amendment pertains only to Wales, although I appreciate the point made by the noble and learned Lord, Lord Wallace, as to the position in Scotland. It seeks to remedy what is essentially already a firm political commitment that we have made, in line with the intergovernmental agreement, that we will not normally put Clause 15 regulations before this Parliament without the consent of the National Assembly for Wales.

I would put it to the noble and learned Lord that the sincerity of this commitment—and the process and agreement that underpin it—is, it would appear, sufficient for the Welsh Government to agree to these provisions, and it is sufficient for the National Assembly for Wales to agree to these provisions, as it did yesterday. There must be a genuine cause for action in the interests of the whole of the United Kingdom if the UK Government ask the UK Parliament to approve regulations without consent from the devolved legislatures. I note what my noble and learned friend Lord Mackay of Clashfern said as to the legal position, but of course it goes beyond that. We are concerned to ensure that moves that have a UK-wide impact have the consent of the devolved Administrations.

The intergovernmental agreement that we have made with the Welsh Government makes this clear. The noble Lord, Lord Thomas, referred to paragraph 6 of that agreement which states that we, the UK Government, will not normally ask Parliament to approve draft regulations in the absence of a devolved legislature’s consent. It is also why we will be under a duty to fully explain any such decision to Parliament and to provide the reasons given by the devolved Administrations for why consent has not been given, so that in considering this matter Parliament will be able to take an informed decision on what is right for the United Kingdom as a whole, based on full information. Ultimately, as we have debated fully in this House, it is for the UK Parliament to decide whether to proceed in putting a temporary freeze on the common approaches we have now under EU law. This amendment, while well intentioned, would undermine that. It risks making it a decision for the courts as to whether that question can be put to Parliament. Moreover, the noble Lord himself observed that where you have the issue of what is normal or not normal in the actions of a Minister, it may be amenable to judicial review if he proceeds without the appropriate consent. It would introduce uncertainty because in that context there are no clear grounds on which the courts can consider whether the requirement set out in the intergovernmental agreement has been met.

I am happy to repeat the commitment set out in the noble Lord’s amendment and in paragraph 6 of the intergovernmental agreement. The implementation of that agreement will result in the UK Parliament not normally being asked to approve Clause 15 regulations without the consent of the devolved legislatures. The UK Government have committed to making regulations through a collaborative process. That puts a similar commitment on the Welsh Government that they will not unreasonably withhold recommendations of consent. These are political commitments which apply to both of our Governments so that the intergovernmental agreement carries greater weight. For the reasons that I have given, I would suggest that there is nothing to be gained, and indeed something to be lost, by putting those words on the face of the Bill. In these circumstances, I invite the noble Lord to withdraw his amendment. Perhaps I may come on to the legislative consent Motion process of yesterday in a moment because he raised questions directly pertinent to that point.

In relation to the amendment spoken to by the noble and learned Lord, Lord Wallace, I recognise that he raised this point during Report and that he is doing so again through his amendment today. I am grateful for this opportunity to clarify these provisions on the record. The noble and learned Lord has made an important case for why we should seek to provide the utmost legal clarity. Given the extent of the Clause 15 changes, this sort of fine detail can easily be lost, but it is no less important that these provisions should deliver the right outcomes. As I confirmed in response to the noble Lord at Report, the reference to principles in sub-paragraph (b) of the reporting requirement is indeed intended to cover those principles that are the subject of his amendment; that is, those principles which were agreed between the UK Government and the devolved Administrations at the Joint Ministerial Committee on EU Negotiations meeting on 16 October 2017 and published in the communiqué of that committee, to which the noble Lord referred. But I ought to be clear that while this reference covers the same ground as the amendment, the current wording also includes any revisions agreed to those principles and to new principles on the same subject that are put in place to supplement them over time.

I am sure that noble Lords will agree that it is right that as the work on the frameworks progresses—and it continues to progress—and as circumstances may change, we, the UK Government, and the devolved Administrations should continue to review the principles to ensure that they remain fit for purpose. I do not believe that it is the noble and learned Lord’s intention that the duty to report on any agreed revisions to the principles should be lifted from the Government or that we should be under a duty to report on the principles as drafted only in October 2017, even where these may have subsequently been revised or updated; but that, on one view, would be the effect of his amendment. In these circumstances, I am grateful for the opportunity to clarify what is covered by the reference to the principles, but again for the reasons given, I invite the noble and learned Lord not to press his amendment.

--- Later in debate ---

[Lord Cavendish of Furness (Con)]

My Lords—

[Baroness Hayter of Kentish Town]

My Lords, I think the view of the House is that we should conclude.

On Second Reading, I referred to a mixture of “Hope, Judge and Pannick” as the tasks that faced us. I think my words were prescient, and it is delightful to see all three here who have been through the long nights with us. At the end of Second Reading, I asked the Minister,

“to defend the right—no, the duty—of this House to advise him and the Commons on the detail of the Bill”.—[Official Report, 31/1/18; col. 1692.]

Never was that defence more needed than when two of our national papers, as we have heard, can have thought to threaten to chop off our heads for carrying out our statutory, lawful duty to send back to the Commons those parts of the Bill we find deficient to meet the purpose of the proposed Act. We have even heard prominent Brexiteers in the Commons accuse the Lords of being “drunk with their own prejudices” or “traitors in ermine”. Even today the noble Lord, Lord Framlingham, talked of “dark days” and of us doing “irreparable damage”. I do not think we have been ordering the massacre of the firstborn. Indeed, as we heard from the Minister, we have had 800 amendments, 200 of which went back to the Commons, only 15 of which were because the Government were defeated in the voting Lobbies. This is hardly a constitutional crisis or anything like it.

Like the noble Lord, Lord Newby, I add very warm thanks to the Bill team, though I have to tell them that their work is not yet quite done. I also thank the team of Ministers. The noble Lord, Lord Duncan, is not in his place, but his poor back led to some interesting dancing at the Dispatch Box. I thank the noble and learned Lord, Lord Keen, whose legal exchanges with my noble and learned friend Lord Goldsmith left me not understanding the language they were speaking at times, let alone the content. The noble Baroness, Lady Goldie, put up a sterling defence of what we thought of as the indefensible, with charm, humour and great tolerance.

And what can I say about the noble Lord, Lord Callanan, other than that I share with him the pain at losing a vote, even if it happened to me only once? The noble Lord, Lord Newby, and I did wonder whether we should thank him for making our task easier, but that would be unfair. He has taught us a lesson in sheer commitment to the Brexit cause, whatever is thrown at him, though I do wonder whether he shares the views of his friend, Daniel Hannan, that “leaving the EU is not quite going to plan”. I think not. His confidence that it is great for the north-east remains, and for that consistency and persistence—some would say in the face of all evidence—we can only admire him and wish him some well-deserved rest after the rigours of the Bill.

My own personal thanks are to my colleagues. My noble and learned friend Lord Goldsmith of course took on all the tricky amendments—except one. My noble friend Lord Griffiths handled devolution; my noble friends Lord Murphy, Lord Collins and Lord Hunt and my noble friends Lady Jones, Lady Wheeler, Lady Thornton and Lady Sherlock all merit high mentions in dispatches. My noble friend Lord McAvoy marshalled the troops and my noble friend Lord Tunnicliffe marshalled our preparations. My noble friend Lady Smith of Basildon opened the Second Reading, in the presence of Mrs May, setting out the shortcomings of the Bill and our objectives for change. Of course, I thank our staff back-up team, who do all the hard work—in case noble Lords thought it was down to me—especially Dan Stevens, whose amendment-writing, briefing and negotiating skills have caused the Government such grief.

We send this much-amended Bill back to the Commons, though with little expectation that they will deal speedily with it, as the Government have first to resolve deep divisions within their own Cabinet, particularly over the very first amendment passed by your Lordships’ House, on the customs union. So while we take a breather, we hope they will see some sense and accept our changes as improvements to the previously flawed Bill. It is only the first Bill. We still have Bills on trade, customs, agriculture, fishing, immigration and withdrawal and implementation, so we will see noble Lords back here on many occasions. For the moment, I shall say just one thing: this is not about whether we leave the European Union but about how we leave. That we must do properly, in the national interest, and that is what I believe this House has set out to do.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I disagree with the noble Lord, Lord Adonis. One of the most important matters is security. In Barcelona the other day, one of Britain’s most wanted fugitives—Jamie Acourt—was arrested in a joint operation between the Metropolitan Police and the Spanish police, possibly assisted by Europol. The NCA head of international operations said:

“Our ability to share information and work at speed with our international partners ensures there is no safe haven for fugitives. We will never stop pursuing these individuals”.


That is no doubt true, but Acourt will be returned under the European arrest warrant. If we do not stay part of the warrant and have to fall back on the long-winded extradition arrangements that predate it—without any participation in Europol to facilitate cross-border police operations—our security will be endangered. I hope the noble Lord, Lord Adonis, accepts that security is one of our most important interests. I hear what noble Lords said about the effect of the amendment but, politically, it is important that this House presses on the Government the importance of staying in agencies and institutions.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I am delighted to speak in support of the key Amendment 93, to which my noble and learned friend Lord Goldsmith added his name and which was moved so biblically and effectively by the right reverend Prelate the Bishop of Leeds. Of course, at that time, I had not only a brilliant legal adviser on my right, but a theological one—my noble friend Lord Griffiths—who has now left the Chamber. I said, “I have to have a biblical quote”, but I am afraid he has a sense of humour and said, “The people who were wandering aimlessly in the pre-Brexit wilderness were soon squabbling among themselves, ignoring the advice of their leader”, and so on. But I will leave my noble friend’s helpful comments for another time.

I say this particularly in answer to the noble and learned Lord, Lord Brown, and my noble friend Lord Adonis. This is an important and meaningful amendment because it would restrict the pretty wide powers given to Ministers in the Bill. That is why we need to pass it. We have on a number of occasions, on this Bill and the Nuclear Safeguards Bill, expressed our surprise that nowhere in the referendum process—in the immediate aftermath, nor in this legislation or any other—did the Government ever spell out that the Article 50 process automatically triggered our exit from Euratom. I will not repeat the costs and dangers of that eventuality given earlier debates on it, particularly the input at that point of the noble Lord, Lord Teverson.

However, equally unremarked on and unmentioned by the Government, or by the Brexiteers during the campaign, was the similar removal of the UK from a swathe of agencies, many of which, as we have heard, we helped to construct and all of which have served this country well. Colleagues will already know, from medical researchers who have been in touch, patient groups, health professionals and the pharmaceutical industry, of the risks of being outside the European Medicines Agency, quite apart from the loss of jobs and specialisms that are now moving to Holland. But the same could be said about the European Food Safety Agency, often referred to, but not today, by my noble friend Lord Rooker; the environment agency, emphasised by the noble Baroness, Lady McIntosh, and my noble friend Lord Whitty; the railways and aviation agencies, often referred to by my noble friend Lord Berkeley; the European Chemicals Agency, which has been mentioned; and, of course, Eurojust, suggested by the noble Baroness, Lady Ludford, and Europol, mentioned by the noble Lord, Lord Cormack.

The commonality is that any mention of those agencies in this House and beyond has included a plea for us to remain members, associates or partners with whichever such agency is in the frame. Sometimes this means following the same rules—as the Government have now accepted for clinical trials—to assist in monitoring; for safety; for easy and rapid transport, as for medical isotopes; to facilitate trade and exchange; to enable skilled persons to undertake checks or repairs; or, as my noble friend Lord Haskel said, to guarantee safe products for users and consumers.

For some of the agencies it might mean paying money in, as the Prime Minister acknowledged. For some it might mean harmonising assurance, governance or penalties for rule-breaking. But for all it will mean a willingness to adapt and respond to requirements, usually simply to maintain our existing rules and practice. What is clear is that, given the wide powers in the Bill for Ministers, we must ensure that none of those powers is used to frustrate our continued involvement with such agencies, whether because, for example, we set different sanctions for breaches, raise fees or charges in a different way that makes it difficult to move along in their way of working, or apply variant rules or any other similar change. That is why it is critical to circumscribe the powers in the Bill so that they cannot be used to prevent us having necessary EU rules or ways of working that would frustrate our participation in any of these agencies. We do not want the powers to be used for that reason, hence the very simple amendment.

The noble Lord, Lord Hannay, had it right: the Bill should not be used to frustrate the intention, should that be the Government’s wish, to stay in these agencies for the good of the whole country. It is, as the right reverend Prelate the Bishop of Leeds said in his introduction, entirely in line with what the Prime Minister said in Mansion House and it would allow this country to continue such relationships where that continuation is in the national interest.

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

My Lords, I understand the sentiment behind Amendment 93 tabled by the right reverend Prelate the Bishop of Leeds— I assure him that I am not one of those who regard him as a hypocritical remoaner. However, I must make it clear that the Government consider its inclusion in the Bill to be both completely unnecessary and totally inappropriate.

Once we leave the EU, this Parliament—and the devolved Administrations, where appropriate—will be free to change the law where they decide it is right to do so. As such, nothing done by this Bill, or any other Act of Parliament, can bind the actions of future Parliaments. A provision which essentially provides that future Parliaments can mirror EU law, which this Bill neither requires nor prevents, is therefore completely unnecessary. Nor does the Bill prevent Parliament approving any future relationship between the UK and the EU, including its agencies and institutions.

If the intended effect of the amendment is to preserve the sovereignty of Parliament, it is also completely unnecessary. The amendment may have been tabled with one eye on the withdrawal agreement, but my ministerial colleagues and I have been clear throughout the Bill’s passage, both within this House and in the other place, that its aim is just to create a functioning statute book as we depart from the EU—a point well made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. For the avoidance of any doubt, the Bill does not seek pre-emptively to legislate for or against any final withdrawal agreement or future relationship with the EU. On this point, I am surprised to find myself in agreement with the noble Lord, Lord Adonis, probably for the first time in the Bill’s passage. On this narrow point, he is right. Incidentally, we have accepted many amendments put forward in this House and by its committees. We have tabled more than 100 amendments responding to concerns raised by various Members of your Lordships’ House, so it is not quite true that we always reject everything that is said.

--- Later in debate ---

[Lord Grocott]

As far as that is possible; the choice was and is still a binary one. I do not think that there can be a compromise between my noble friend Lord Adonis’s position and mine, because he wants to remain in the European Union and I want to leave it. There may be a halfway position there, but I have not quite discerned it yet. Larger brains than mine need to find a consensus on that, if there is one. However, I am utterly clear that once this House of Lords, as well as the House of Commons, has said to the British people, “We want you to make a decision. We’ll tell you what the wording on the referendum ballot paper will be. We’ve decided that, we will decide the date, and we will abide by that decision”, those statements are unchallengeable. It is our duty to deal with the legislation which is the inevitable consequence of that decision, of which the Bill is one part.

[Baroness Hayter of Kentish Town]

My Lords, I will restrain myself from entering into a longer debate on this issue. I agree with my noble friend Lord Grocott that this is an important Bill, but it will also affect the negotiations, and part of that will be affected by the timetable.

It is interesting that at various times when we have discussed the promised vote on the final deal—it is not just a matter of leaving but of our future relationship with the EU after we have left—the Minister has said that he hoped that the vote, in both Houses, would take place before the European Parliament has had its say, but that he could not definitely promise that it would, because our parliamentary timetable might not be flexible enough to fit in with that of the European Parliament. I cannot say that I accept that argument, because after all, we control our business and when we have votes—not necessarily how late at night they happen, but effectively we control our timetable. However, if the Minister was correct in the assumption that the European Parliament’s vote might not be at a predictable time—it may be delayed because talks are still going on—it may suddenly be brought forward.

Here, I will answer the point raised by the noble Lord, Lord Butler. It seems essential that the deal has to be agreed before April, when the European Parliament will go into recess, because under Article 50 the deal has to be agreed and have the consent of the European Parliament. If the European Parliament is to recess, adjourn or prorogue before its elections, the deal has to get consent before then. Therefore, there is a timetable, and it has to go before the European Parliament. I have had various legal advice about what happens if the European Parliament does not give its consent—it seems quite complicated—but certainly Article 50 says that it has to give consent. Therefore, the negotiations could go on a bit later than everyone wants, and the European Parliament will have to prorogue for its own elections and will have no authority thereafter. The date on which we leave could be fixed by the words in an Act of Parliament which will be passed in August or whenever, some months after those events, and that seems a very unhelpful position for our negotiators to be in.

I am sure that there will be late-night sessions and lots of consultations, with people ringing back for instructions as the negotiations go on—there are people who have been through all this. I hope that we have trained the Minister well in coping with late nights here, because he may well have more of those, but there could be very long nights as the negotiations go on. If one side—our negotiators—were curtailed by a strict date in the Act, that would put us at a disadvantage. The other side is not so constrained. The European Parliament can meet at very short notice when a decision has been taken.

However, I interpret Article 50 slightly differently. It says:

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after … notification”.


So, without having to go to the Council for a unanimous decision, the withdrawal agreement could contain a leaving date of a week or two weeks after the two-year period, which would allow the last-minute arrangements to be made. If that is what the withdrawal agreement specifies, if that suits all the parties and if our Government would like to sign up to it, it would seem silly not to be able to do that.

It is important that we enable the negotiators to get the best possible deal, setting out exactly how we leave and exactly what our future terms of trade will be. If the amendment is passed, it will remove the straitjacket that the Government inserted at the behest not of the negotiators but of certain ardent Brexiteers. Let us remove that straitjacket, make the task easier for the negotiators and reflect what our own EU Committee said:

“The rigidity of the Article 50 deadline of 29 March 2019 … makes a no deal outcome more likely … enshrining the same deadline in domestic law would not be … in the national interest”.


I am sure that the Government want to put the national interest first and I certainly believe that this House will want to do so. Therefore, we strongly support the amendment moved by the noble Duke, the Duke of Wellington, and we urge everyone to go into the Lobby behind him.

[Lord Callanan]

My Lords, I thank all noble Lords for their contributions to this debate. Exit day has been discussed at length throughout the passage of this Bill. Set dates such as this are often crucial to the functioning of any legislation, but I would like to take this opportunity to remind noble Lords of the particular importance of exit day in this Bill.

Exit day is the moment in time when the European Communities Act is repealed. It is the point at which EU laws are converted into UK law, when the deficiencies in retained EU law emerge and when a range of other effects are triggered under the Bill. However, I reiterate that exit day within the Bill does not affect our departure from the EU, which is a matter of international law under the Article 50 process, as my noble friend the Duke of Wellington and the noble Baroness, Lady Hayter, made clear. What it does affect, however, is whether we leave the EU in a smooth and orderly fashion.

The definition of exit day, and how it is to be set out, has been amended significantly since the Bill was introduced to the other place by my right honourable friend the Secretary of State for Exiting the European Union on 13 July last year. My noble friend Lady Goldie has previously described the sequence of events which led us to the current drafting and I will not test the patience of your Lordships by repeating the arguments she made in Committee. What I will say, however, is that, crucially, the Bill left the other place reflecting the reality of international law under the Treaty on European Union. I see no reason, therefore, to change the Bill any further. The final drafting also reflected the concerns of Members of the other place who had been on both sides of the referendum campaign. That fact sits at the core of my opposition to Amendments 74, 95 and 99 in the name of the noble Duke, the Duke of Wellington.

As has been stated on many occasions during Report, this House reviews the legislation sent to it by the other place and highlights—often very well—areas where it does not think due consideration has been given. This point was well made by the noble Lord, Lord Grocott, as a leaver from the West Midlands. As a leaver from the north-east, also an area underrepresented in this House, I have considerable sympathy with his arguments. I therefore cannot why these amendments are seeking to restore something like the original drafting of the Bill when that drafting was considered at great length, on many occasions, and was rejected by the other place.

I also do not agree with Amendment 96 in the name of the noble Lord, Lord Wigley. The Bill is designed to provide continuity and certainty in domestic law as we leave the EU. This must be true in a scenario where we have a deal with the EU, but it must also be true in the unlikely event that there is no agreement between the EU and ourselves. While this is not what anybody on either side is hoping for, it would be irresponsible and out of keeping with the remainder of the Bill not to prepare for that unlikely event. In that circumstance, it would be vital that the Bill did not make reference to concepts which are contingent upon a successful negotiated outcome, such as an implementation period. That would prevent the Bill achieving its objective as agreed at Second Reading, because in that scenario further primary legislation would be required to alter exit day and provide for an operable statute book. Even in the Government’s preferred scenario of a successfully negotiated withdrawal agreement, including of course an implementation period, the noble Lord’s amendment presumes that no substantive provisions of this Bill will be required until the end of that implementation period.

While I do not want to be drawn into a discussion about the legal construction of the implementation period, which will be a matter for the withdrawal agreement and implementation Bill—I have no doubt we will have great fun in our opportunity to consider that—I do not think that the noble Lord can be certain in his assumption. This is the real issue with the noble Lord’s amendment: it attempts to use this Bill to legislate for the implementation period. But the Government have been quite clear that the implementation period will be a matter for the withdrawal agreement and implementation Bill once we have agreement. This Bill is deliberately and carefully agnostic about whatever deal we strike with the EU, prejudging neither success nor failure in negotiations.

Of course, we hope and expect to be successful in these negotiations, and our continuing progress demonstrates good movement towards that goal. I hope that noble Lords will reflect the compromise reached by the elected House, and therefore I respectfully ask the noble Duke to withdraw his amendment.

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[Lord Green of Deddington (CB)]

My Lords, one aspect of this will be dealt with, or should have been dealt with, by looking at the immigration system we will have with Europe. We have made proposals for the free movement of young people, and we could have proposals for movement without visas and so on and so forth. Personally, I think the Government made a serious mistake in not setting this out and getting into a negotiation with the European Union that would tackle some of the aspects that have been raised.

[Baroness Hayter of Kentish Town]

My Lords, the House has heard the pleas of the heart if not of the head. I think I have said before that, although I was born in Germany, I sadly do not qualify for a German passport or else I would be doing the same as many others. So many people are doing it because they fear and regret losing their EU citizenship. As the noble Lord, Lord Kerr, quite rightly said, in the treaties EU citizenship is an add-on. Only people who are citizens of a member state have EU citizenship, with all the rights, protections and consular protections that brings. They have to be a citizen of a member state. Sadly, that change will come and we will not be EU citizens.

I would like to leave a thought with the Minister. We have not treated the whole of this aspect sufficiently seriously. We have not reached out to EU nationals living here and to people who are losing their rights as EU citizens. We have still not told EU citizens living here—unless I missed it—whether they will be able to continue to vote in our local government elections. We know they will not be allowed to vote in the European Parliament elections—that is fairly obvious—but there are other changes that the Government have been very lax and slow in spelling out.

The plea behind some of the feelings that we are having is to listen to the current EU citizens. If there is one plea that I would leave with our negotiators, it is that we need a withdrawal deal that puts citizens at its heart, not as an add-on, and that we should do everything that can be done to keep the links that we already have with agencies, education and so on. That would help to make a withdrawal deal that would enable British citizens, even if they will not have that lovely treasured purple passport, still feel as if they are continentals—full associates, if you like—with the rest of the EU.

[Lord Keen of Elie]

My Lords, this is of course an important issue that has already been covered in depth, both in this Chamber and in the other place. I welcome the opportunity to discuss it further with the noble Lord, Lord Wigley, when we exchange views on the interpretation of the Vienna Convention on the Interpretation of Treaties, particularly Article 70 thereof. I acknowledge fully his interest in this area, the depth with which he has examined it and the importance that he underlines with regard to this matter.

Nevertheless the position remains, as summarised eloquently by the noble Lord, Lord Kerr of Kinlochard, that there is no provision in EU law for the concept of associate EU citizenship. It is clear that EU citizenship is tied to citizenship of a member state. The European Commission itself has referred to the additional rights and responsibilities attributed to the nationals of EU member states by virtue of EU citizenship, which they automatically attain under the provisions of the EU treaties. I emphasise the EU treaties because to take such a matter forward it would be necessary to contemplate the amendment of the EU treaties in a quite radical way, in order to attempt to confer on citizens of non-EU members the status of EU citizenship or something connected to it. However, we are willing to listen. Noble Lords may recollect that the European Parliament mentioned the idea of some associate citizenship; it has never elaborated upon that but if it wishes to, we are listening, and we would listen to that. I wish to make that clear.

The position of the Republic of Ireland emerges as the consequence of bilateral treaties that predate our entry into what was then the EEC and Ireland’s entry into the same, and that is not directly affected by our exit from what is now the EU. My understanding is that those arrangements continue in force.

With regard to the wider issue raised by the noble Baroness, Lady Hayter—the matter of voting rights, for example—during the course of the earlier negotiations we attempted to negotiate with regard to the exchange of voting rights, but at that stage the Commission declined to do so. That is something that we would wish to carry forward but the Commission was not prepared to engage in that discussion at that stage of the negotiation. Again, we remain open on these matters.

The citizens’ rights agreement reached in December, which is now set out in the draft withdrawal agreement, provides certainty for UK nationals in the EU regarding their rights following our exit. The agreement with the EU protects the rights of EU citizens and their family members living in the UK on exit day and indeed vice versa. To that extent, it will give citizens certainty about a wide range of rights including residence rights, healthcare rights and pension and other benefit rights. That will mean that UK nationals who are legally resident in the EU by the end of the implementation period will continue to benefit from most of the rights that stem from their EU citizenship today. As I say, associate EU citizenship does not make up part of the citizens’ rights agreement, and indeed by attempting to make it a negotiating objective we would be setting ourselves what is, frankly, an impossible target. The consequence would be that, should the amendment pass and the Government fail to adopt such an impossible negotiating position, our entire post-exit statute book would be put at severe risk. There would appear to be no sensible point in attempting to do that.

I stress that with regard to this matter we are in listening mode. Reference was made to the suggestion of further litigation in this area. A case is going on in Holland at present. It was referred by the Dutch Government to the Amsterdam Court of Appeal, which has heard the appeal and is due to deliver its judgment later in June. We do not believe that is going to affect the matter at all but we await the judgment of that court. At present, though, we must proceed with the ultimate goal: to deal with Brexit in the easiest manner possible so far as citizenship is concerned.

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[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord for his guidance on the procedures and nature of this House. He will be well aware of the importance of brief interventions at this stage in the consideration of a Bill. There were indeed 290 votes on a three-line whip, but what is the whip on the Labour Benches today? You are all being told to abstain. For the noble Lord, Lord Alli, to say that the Government’s position is confused, when not many months ago, as the noble Lord, Lord Kinnock, pointed out, the Labour Party had a three-line whip on the EEA but is now urging people not to vote for this amendment—

[Baroness Hayter of Kentish Town]

As this has been raised, it is only fair—for my colleagues more than for the noble Lord, Lord Forsyth—to make it absolutely clear that the three-line whip was on an issue about whether that decision should be taken by Parliament or not. Heidi Alexander, who proposed the new clause 22, said that:

“New clause 22 would not decide on the substantive question of EEA membership, but it would guarantee that at a future moment the House could have its say”.—[Official Report, 15/11/17; col. 426.]


That is, of course, what we have done with the meaningful vote. It is appropriate that accuracy is put before this House.

[Lord Forsyth of Drumlean]

I note that the noble Baroness has not said that her colleagues have been asked to abstain on this matter.

[Baroness Hayter of Kentish Town]

They have indeed.

[Lord Forsyth of Drumlean]

So, from having a three-line whip, and arguing for the importance of the European Economic Area, we now have a “Don’t know” position on the Front Bench. And the noble Lord, Lord Alli, has the cheek to say that the Government are confused about their position; just as the Opposition have been confused about a customs union or the customs union. The truth of the matter is that a number of noble Lords wish to reverse the decision of the British people.

The noble Lord, Lord Wallace of Saltaire, asked me to comment on the position in the referendum campaign. I campaigned in the referendum campaign and went to a number of public meetings. I heard the argument being made that, if we were to join the EEA and be out of the European Union, we would have “fax diplomacy”. We would have no say in the regulations and that was the worst of all worlds. I now find that the people who were advancing that argument are now pretending that it is in the interests of the country: it certainly is not.

The noble Lord, Lord Alli, asked: “What are we getting for our money?”. As my noble friend has pointed out repeatedly, nothing is agreed until everything is agreed. There will be no money paid if we do not have a negotiation which is in the interests of the United Kingdom. By suggesting that that money will be paid, and that the Government cannot get a good negotiation, he is undermining the position of his country, and of the Government, in vital negotiations which, as speeches on all sides have pointed out, are of great importance to the economy as a whole.

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[Baroness Altmann (Con)]

My Lords, I support this important amendment. The EEA offers a way out of the impasse our negotiations are in. I am therefore disappointed that many in this House seem opposed to the amendment. I urge my noble friends to recognise that there are many Conservative and Labour MPs who wish us to pass this amendment tonight and send it back to the other place for reconsideration. My noble friend Lord Forsyth mentioned this, and I urge him to recognise that there is a strong and growing feeling in the other place that it would like to reconsider the EEA. Seeing the problems facing the country, and seeing businesses large and small increasingly explaining how vital it is not only to have a customs union—or partnership, or whatever we wish to call it; perhaps fish and chips, as my noble friend Lord Patten suggested —MPs increasingly realise that it is not enough to protect British manufacturing and the vital services sector.

It is crucial to keep EEA membership as an option and I ask for your Lordships’ indulgence to explain why the EEA is consistent with the referendum vote and how the analysis of the noble Lord, Lord Howarth, omits important elements. Being in the EEA would ensure that we are protected in a no-deal scenario, which could otherwise be catastrophic for the UK economy and would necessitate a hard border in Ireland. EEA membership has an emergency brake on free movement of workers so that we could limit the numbers coming into the UK if needed. Articles 112 and 113 state that if there is serious economic, societal or environmental difficulties immigration can be curtailed.

Being a member of the EEA means that regulations can stay aligned with the EU, so our exports of goods and services will not face new barriers. There is no more risk of ever-closer union as the EEA is strictly an economic union. EEA disputes are settled by the EFTA court using the English language, not the ECJ. EEA membership does not include the common agricultural and fisheries policies, as we have heard, but it also does not cover many other areas which the British people may be concerned about as EU members, such as VAT, justice and home affairs or commercial policy. Decisions require unanimity, not qualified majority voting, so there is not the same risk to our sovereignty. There are already negotiations and free trade agreements with 27 countries and negotiations are under way with India, Indonesia and Vietnam. The EU agencies that we already voted for earlier this evening are open to EEA members in most cases. Surely the value of protecting the Northern Ireland border and continuing close trading relationships with the EU in both goods and services far outweighs the possible benefits of imaginary trade deals with third countries. The Government’s analysis shows that, even if we get a free trade agreement with the US, India, Australia and others, it would boost GDP by only 0.7%.

Unlike EU law, EEA law does not have direct effect, but has to be incorporated into national legislation in accordance with each state’s constitutional requirements. EU legislation is not imposed on non-EU EEA states. The final decision on whether rules will be implemented is made by the EEA Joint Committee, which compromises of EU and non-EU EEA states, so decisions are taken on the basis of unanimity. That means that, in extremis, a non-EU EEA state could veto proposed rules, as Norway has done in the past. I urge noble Lords to vote for the amendment as a protection for the UK, its people and its democracy. Being in the EEA respects the referendum result. We would not be in the EU but we would minimise damage to our wonderful country and its citizens.

[Baroness Hayter of Kentish Town]

My Lords, this has been an informative, interesting and passionate debate on a key element of our future relationship with the EU. Unlike the noble Lord, Lord Forsyth, I think that it is entirely appropriate for us to discuss this here and in the context of the Bill.

It has long been the judgment of the Official Opposition that the Prime Minister made a grave mistake at the very opening of negotiations in sweeping certain options completely off the table. Her red lines, which closed down the possible positive and constructive development of a new partnership with the EU, were irresponsible, short-sighted and aimed more at her hard Brexiteers than at the interests of every part of the UK. Whether one is thinking about Ireland, Scotland, the regions, Welsh farming, manufacturing, the City, aerospace, automobiles or any other sector of the economy, those options were off the table before we had even had the impact statements.

It is not the way that we would have opened discussions on our post-Brexit status. Nor would we have written our own red lines. Instead, Labour set out the objectives for, rather than the particular architecture of, any new relationship. One of the problems with the specifics of these amendments is that they define the structure, not what we want to achieve. Indeed, on the objective, I agree wholeheartedly with my noble friend Lord Alli. We urgently need a deal on services if the UK economy is ever to thrive—but the particular model defined may have some shortcomings, some of which the House heard about in the debate on the amendment of the noble Baroness, Lady McIntosh, and which the noble Lord, Lord Kerr, touched on. Not only might EFTA, with its 14 million people to our 66 million, not want us and not suit us, but, because EFTA is not in the customs union, it cuts across the major amendment passed with a majority of 123 in this House on 18 April that was in favour of us being in a customs union. It also does not mention agriculture, which is so important in Ireland. At the moment, we cannot have both a customs union and EFTA.

[Noble Lords]

Why not?

[Baroness Hayter of Kentish Town]

Because that is what EFTA rules say. It is true that, if the negotiations were in our hands and we were in government, I would have a great deal of faith that, if my right honourable friend Sir Keir Starmer, my noble friend Lord Mandelson or the noble Lord, Lord Robertson, were navigating through the negotiations, they could find a new course for the UK, retaining the benefits of our EEA membership —perhaps even continuing our membership—while forming a customs union with that massive market just off our shores.

We have been clear throughout that any Brexit deal must deliver a strong new relationship with the single market that ensures full tariff-free access, no new impediments to trade and no drop in rights and protections. No doubt this will require a new UK-EU treaty, which must also include a new customs union and a close relationship with the EEA. Any such new arrangement must be based on a negotiating mandate. Thanks to Amendment 51, moved by my noble friend Lord Monks and passed by this House, that mandate would have to be approved by Parliament. It is at that point, when the mandate could be amended, approved or even rejected, that Parliament should help steer the course for our future long-term trading relationship, and other relationships, with the EU. Then, Parliament could decide on whether we are in or out of a customs union, the internal market, the agencies we have just discussed or any such issues. That is what Heidi Alexander’s amendment was about: not sweeping things off the table until Parliament had its vote.

As we heard and witnessed, last week, over the weekend and even this morning the Cabinet has struggled to find a coherent approach to the customs union. Unbelievably, as has been referred to, we even heard the Foreign Secretary call his Prime Minister’s customs plan “crazy”. Our priority now should be to nudge, encourage and persuade the sensible Members of the Government to heed pleas from Ireland, business, the professions, unions and others to close off the possibility of frontier posts, import duties, and checks and hold-ups at borders. At the moment, the Government are risking the end of our hassle-free trading, as well as risking employment and growth. Because of this House’s requirement of Parliamentary approval for the negotiating mandate, this House’s support for a customs union and possible practical problems associated with EFTA membership, we ask our colleagues to abstain on the amendment.

[Noble Lords]

Shame.

[Baroness Hayter of Kentish Town]

It is not a shame. What were the words? “Kindness, care and consideration”. It is because we share the objectives of that best possible deal that we should make sure that our mandate and agreement serve the whole country, the economy and the regions. At this stage, we should not support one particular approach to that. I urge the House to abstain on the amendment.

[Lord Callanan]

My Lords, before I address the amendment I will say a brief word, if the House will permit me, about the previous group, which we did not get a chance to speak on. I did not have the opportunity earlier to announce that the Government intend to consult further on ambulatory references—about which I am sure noble Lords are concerned—particularly in relation to contracts. Subject to the outcome of that consultation, further legislation might be brought forward under the consequential powers in the Bill.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Fairfax of Cameron (Con)]

My Lords—

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I think we have now heard, especially if what has been said is true, that the House will be more in favour of the amendment than against. The balance of speakers now is possibly to allow one speech in favour of the amendment.

It is a bit of a shame as I wanted to follow the noble Lord, Lord Dobbs, because it is always such fun. The only disadvantage of him being in the House is that he is not writing another television play. Please go back to doing that. The uproar in the Commons which the noble Lord mentioned—I am afraid he cannot stand up again—can be in another play.

These are serious issues and I cannot agree more with what the previous speaker has just said. It is about allowing for the deal to be negotiated—the best deal for this country, we hope—and then for it to come to Parliament. This is not, as the noble Lord, Lord Howard, said, about creating a constitutional crisis; nor is it about asking the Commons to become a negotiator, as someone said. It is to ask the Commons and Parliament to decide whether the outcome of the negotiations is good enough for the country. That does not seem too much to ask.

As for the noble Lord, Lord Lamont, worrying that it will somehow affect the negotiating timetable if our negotiators have to come back to Parliament, that, of course, is exactly what is happening on the other side because the negotiator Monsieur Barnier has to go to his Parliament—the European Parliament—to get it through there. We could see that one side has to go to a Parliament to get the deal approved but not ours. I really do not see that the timetable is quite a problem.

We always feel very sorry for the Minister—and me—on these long days because we do not get any lunch. Today I gather he got absolutely none because he was on the radio at lunchtime. What did he say? He said that the amendment was about overturning what the people decided in June 2016. That is not what it is about. It is about asking the Government to put the results of their negotiations to Parliament. It is quite hard to see why the Government, or the noble Lord, Lord Howard, and the others, are so worried about it. What do they have to fear—that the deal will not be good enough?

We support the amendment, which is quite simple but has to be written quite complicatedly because we are trying to get it right. It is to put into law the undertaking that the Prime Minister gave that both Houses of Parliament would have a vote on the outcome of the withdrawal negotiations. There are five reasons for supporting it. First, as with Article 50—but this time without having to go to court—it is to ensure that the withdrawal agreement is put into statute by Parliament because a mere Motion, which is what we have been offered, has no force of law. In fact, I doubt that it is even, in the words of Article 50(1) of the treaty, in accordance with our “own constitutional arrangements”, which is what is required.

Secondly, the votes in Parliament must be meaningful. That means that they need to be effective, but also that there must be a real choice and that the outcome must be binding on the Government. Particularly for the House of Lords, it would be meaningless, if the Commons voted yes to the deal, if we were then asked to vote. If we wanted to vote no, we would know that it would not be binding and that the Government were going to ignore it—it would not matter what we did, so we might as well follow the Commons. Or, if it was binding on the Government, we would be in the difficult position outlined by my noble friend Lord Grocott. If, as an unelected House, we wanted to vote no, we would risk overturning the elected House. My judgment is that in those circumstances we would have to vote yes regardless of what we thought of the deal. That would be a meaningless vote.

Thirdly, the votes in both Houses must offer a reasonable choice. It would, I suggest, not be meaningful to vote either to exit on a deal if we think it is poor, or else to crash out on no deal—that is, on even worse terms: WTO terms, no safeguards for UK citizens abroad or, indeed, EU citizens here, a hard border in Ireland and no transition period. That is Hobson’s choice. It is true that last week David Davis suggested that there might be a third option—perhaps extending Article 50—but without it, if we simply have the deal on the table or a cliff edge and off, that is not a meaningful vote.

Fourthly, as has been said, the promised vote is currently only on a negotiated withdrawal deal. It gives no role to Parliament over a decision by the Government to walk away without a deal—again, with WTO terms, no safeguards for our UK citizens living in EU countries nor EU citizens here, a hard border in Ireland and no transition period. That cannot be something that the Government decide without Parliament.

Lastly, the promised vote says nothing about the consequences of a rejection of the withdrawal deal, or of the no deal that we heard about earlier. As we have heard, the amendment, in its different ways, answers all those shortcomings. It puts the vote into law. It removes a Lords’ veto that would otherwise make our vote meaningless. It extends the vote to a no-deal situation, and it signals what must happen should the deal be rejected or there is no deal; that is, the House of Commons must then decide the next step. I commend the amendment to the House.

[Lord Fairfax of Cameron]

My Lords—

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[Lord Callanan]

I am not going to dictate what Parliament might want to do with that Motion or any other. Members will be free to table amendments to the withdrawal agreement and implementation Bill.

[Baroness Hayter of Kentish Town]

Will the Minister answer the other question: will it be binding on the Government?

[Lord Callanan]

Of course it will be binding on the Government. If Parliament rejects the deal we have negotiated, of course it cannot be implemented.

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[Lord Shinkwin (Con)]

My Lords, I shall keep my remarks very short. I believe that the noble Lord, Lord Newby, hinted at the elephant in the room, which is respect for the clear majority who have already spoken in a once-in-a-generation referendum. He referred to the result of the referendum as being sacrosanct. Yet this amendment sticks two fingers up at the majority who voted to leave in that once-in-a-generation referendum. It tells them that we as a Parliament may have passed a law giving them the final say, confident that they would vote to remain, but that they did not repay our confidence, they failed the exam, and now there needs to be what amounts to a resit. But the once-in-a-generation referendum was not an exam and the 17.4 million people who voted to leave did not fail it. If we pass this amendment it will be Parliament that fails to respect the people. We need to respect the majority vote in that once-in-a-generation referendum as sacrosanct. Any noble Lord who truly respects the people and the fact that they have already spoken should oppose this amendment.

[Baroness Hayter of Kentish Town]

My Lords, we have heard the case that, having seen the terms of our withdrawal, Parliament should have the option of deciding whether to put those terms to a referendum, with the choice between yes to the terms and yes to stay in; with no other question on the ballot paper, such as better terms; and with the decision to hold a referendum to be taken by both Houses of Parliament, which of course gives the Lords a veto. Having only two options on the table may not be the best suggestion for what is now being called a people’s vote, but let us put that to one side for a moment. I want to question the wisdom of asking the Commons to vote on an amendment to the Bill at this stage, which opens up the issue of whether we hold another referendum, given the implications of such a discussion right now for both our national debate and the negotiations with the EU.

On the former, what would it mean here at home? I see a divided country. The referendum may not have divided us, but it certainly provided evidence of that divide. London and Scotland feel quite a different nation from most of the UK on the Brexit question. Views are sharply divided—not helped by the Government, I am afraid. In June 2016, one might have expected a Prime Minister to reach out to the whole nation, including those hurt by the outcome, to bring the country back together. Sadly, instead, David Cameron walked away and the new Prime Minister, in her approach to the negotiations and the sorts of relationships we want to have with the EU after we leave, instead of trying to reflect the fact that nearly half the voters would have liked to stay in, took what I consider an overhasty decision to focus on a particular type of exit, which is really anathema to those on the losing side. Regrettably, she continues to listen only to those on the winning side—those who called for a referendum, who campaigned for us to come out, who won the vote and who now want the hardest of Brexits: a go-it-alone version, leaving behind the very successful trading relationship we have now. This House has voted against coming out of the customs union, but the Prime Minister is still failing to bring the country together and build a wider consensus. She is turning a deaf ear to business, which is crying out for a better sort of Brexit.

I therefore wonder what will happen to the national debate about the sort of Brexit we want if, quite unnecessarily at this moment, we insert into the Bill the potential of a new referendum, with all the division that that will cause. It is unnecessary because the amendment we passed one hour and 25 minutes ago does not close off the possibility, though nor does it trail it. It gives the option as a potential, as indeed the Labour Party conference agreed some time ago, as my noble friend Lord Adonis reminded us, but my concern is that moving the current discourse on to the issue of a second referendum, when the real question before Parliament is the sort of deal we should be seeking, will foster more division and distrust, and it will let the Government off the hook about their disastrous negotiating strategy and the formulation of that strategy.

The external consequences of the amendment have already been mentioned. It is possible that the introduction of a new element of uncertainty—that the deal might need to go to a referendum—could make the necessary compromises in the current negotiations with the EU harder to achieve.

We do not rule out any form of democratic engagement, but we are not persuaded by this call now. We are not sure what exact question the referendum would ask because, if it is only out on the terms negotiated or out with no deal, that would be meaningless; out on the current terms or staying in may also not be the full range of options. We are not persuaded that this is the debate that Parliament or the people want at this moment. In the words of my noble friend Lord Campbell-Savours, it is premature.

There is a further issue. For the referendum to be accepted by the electorate, it would have to be supported more widely than just by those who favour a particular outcome; otherwise, it will be seen simply as a device to stop Brexit rather than a serious poll on the terms negotiated. At the moment, with just one exception—Nigel Farage—only one side is campaigning for a new referendum. Therefore, that is how I fear it will be seen.

We will abstain on the amendment. But more than that, I ask colleagues across the House to think twice before supporting a referendum now, given that that might further divide the country, rather than unite it; given that the option is always there anyway; and given that that would take the attention off the negotiations at this critical moment.

[Lord Adonis]

Why does my noble friend think that opinion will be less divided in October than it is today?

[Baroness Hayter of Kentish Town]

It may or may not be, but that will be an issue for then. The issue for now, surely, is the negotiations that are taking place and the maximum input and effect that we can have on them.

We need to use every bit of our persuasive powers to change the objectives that the Government seem to have set their red lines on. Not everyone will agree with me on that, but that is where the public debate should be at the moment. I have heard the arguments for a referendum. This is not the time to get the public debate back on to that rather than on the subject of the negotiations. I urge that we abstain on this amendment.

[Lord Callanan]

My Lords, I do not know if the noble Countess, Lady Mar, is in her place but I note that the Companion to the Standing Orders makes it clear that:

“Arguments fully deployed … in Committee of the whole House … should not be repeated at length on report”.


I therefore face a challenge today, as did my noble friend Lord Bridges during the passage of the European Union (Notification of Withdrawal) Bill, because we seem to have heard it all before. As he said then and I have said and the Prime Minister has said, our position remains unchanged from the time of the referendum that we will respect that result.

When voters walked into the polling booth on 23 June 2016, they were asked:

“Should the United Kingdom remain a member of the European Union or leave the European Union?”.


This question was put to the public as a result of an Act of Parliament passed by both Houses. The question was not, “Should the United Kingdom negotiate to leave the EU and put the terms of that departure to a further referendum?”—a point that was well made in the excellent speeches of my noble friend Lord Faulks and the noble Lord, Lord Grocott, on the Labour Benches.

Some noble Lords—possibly the Liberal Democrats—may wish that that had been the case, but it was not. The public, in the largest democratic exercise ever conducted in the United Kingdom, voted on that simple question and that simple question alone—a point made well by my noble friend Lord Shinkwin. Both sides in the referendum campaign pledged to respect the result; once the outcome of the vote was clear, that meant to leave the European Union. The public voted to leave and they expect the Government to deliver on that, not try to judge what they may have wished the question was. This promise was repeated in last year’s general election in the manifestos of parties commanding more than 80% of the vote and to which more than half the noble Lords in this House are affiliated. It is on the basis of that commitment that we are here today: the Bill is a necessary component of delivering a successful Brexit. Fundamentally, it is about providing legal certainty, for businesses here and abroad, and for citizens in both the UK and EU—which was also a point well made by my noble friend Lord Faulks.

How would the amendment fit in with that purpose? Inserting a requirement for a second referendum would have exactly the opposite effect. This House will be all too aware that a second referendum would require a further Act of Parliament. What would that process look like? What would the question be? What conditions would be attached? Would there be provision for a further referendum if the Liberal Democrats still did not like the answer? How long would it take to get the referendum legislation through the House and what would happen to business, industry and citizens in the meantime?

Furthermore, while we in this House, and in the other place, debate these issues, businesses and individuals will suffer from the uncertainty that it will bring, when what they really want is a continuation of the certainty provided by our successes in the negotiations so far. There would be legal challenges, I am sure, and perhaps clamour for a third referendum, maybe even a fourth—points well made by the noble Lord, Lord Howarth, and my noble friend Lord Dobbs. If we commit to continually looking over our shoulder, to holding a second referendum, we cannot be a strong or reliable partner in the negotiations.

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[Baroness Hayter of Kentish Town]

My Lords, in one way, it is difficult to imagine a more pertinent week for this amendment to arrive in this House. It is true that perhaps it would have been better if we had included it in the Article 50 Bill: if when, as we authorised the Government to fire the starting gun on our departure from the EU, we had laid down at that stage the requirement for the negotiating mandate which would have set out our future relationship with the EU and asked for it to be approved by Parliament.

As it turns out, that would have been good for the Government as well as for the country, as it would have forced the Prime Minister at that stage to fashion a mandate to find favour with Parliament: avoiding a further year of disputes, lobbying and, dare I say, manoeuvring within her Cabinet. Indeed, the Government’s dithering and internal party arguments have held up parliamentary work on, for example, the Trade Bill, with 12 wasted weeks’ delay on a crucial Commons vote—the equivalent of a 10th of the time allocated for the Article 50 negotiations. Such uncertainty has left the EU scratching its head as to what exactly the UK wants.

It must also drain the Prime Minister’s time and energy as she seeks to reconcile the irreconcilable within her party rather than putting the country’s interests first. The prime, perhaps the central, job of any Prime Minister is to defend and promote her country’s interests. That is what she should be doing, rather than acting as a nursery teacher controlling unruly youngsters.

That behaviour rolls on. On the one side, she is under huge pressure from within her Cabinet to abandon even consideration of a customs partnership, with, we read, senior Brexiteers “preparing for a showdown” at this week’s Brexit sub-committee. Incidentally, the showdown is in part led by Liam Fox who, in 2012, called for a new relationship with the EU based on,

“an economic partnership involving a customs union and a single market in goods and services”.

At the same time, David Davis was saying that his preference was to remain in the customs union. So their former selves were looking towards that, and your Lordships’ House, by its view on the customs union, has expressed a fear about a physical and regulatory break from our largest trading partner.

We also hear that from businesses, trade unions, environmentalists, those speaking about Northern Ireland and, possibly, from a majority in the House of Commons, where, in due course, there will have to be a crunch vote on the shape of the customs union relationship, in particular. The Prime Minister will not be able to postpone that indefinitely. As the saying goes, “You can run, but you can’t hide”. Part of the reason that that is happening now is because we did not have parliamentary approval for the negotiating mandate at the start of the process.

The amendment demands that the articulation of our future relationship—what the Government want to achieve from the negotiations—should be spelled out and put to Parliament. Perhaps the noble Lord, Lord Hamilton of Epsom, is right in what he says about what that will spell out and what the mandate would include, but why not have it endorsed by Parliament?

We support the amendment, which would ensure that that negotiating mandate, which would cover trade and our future relationship with the EU, is approved not just by what is a rather divided Cabinet at the moment, but by Parliament, which is where the decision should lie.

[Lord Callanan]

My Lords, I begin by making it clear that Parliament has a critical role in scrutinising the Government’s negotiating position. It is our responsibility as a Government to provide both Houses with ample opportunities for scrutinising both the approach we are taking to exiting the EU and any implementing legislation—and we are doing so.

The Secretary of State for Exiting the EU has provided an Oral Statement to the House after every negotiation round. He has provided evidence to the Select Committee on Exiting the EU five times, and has appeared before the Lords EU Committee four times. On 29 occasions to date, DExEU Ministers have given evidence to a wide range of committees, from Environmental Audit to Science and Technology. As my noble friend Lord Hamilton observed, the Prime Minister has laid out her intentions for the future economic and security relationship between the UK and the EU in several speeches, most recently in those made in Munich and in London’s Mansion House. Her intentions were also made clear in the seven future partnership papers, where the Government set out their negotiating objectives across a number of areas, including customs, science and innovation. Government Ministers have made a series of speeches laying out their intent for various aspects of the future relationship between the EU and the UK.

The scrutiny received during these parliamentary appearances, and in the multitude of reports from the committees of this House and the other place, have been of great value, and have done much to help inform the Government’s work so far. There has also been a wide range of engagement activity by government with key stakeholders across business, civil society and other interested groups. While there are some who think that Parliament should have a greater role in setting the terms of our negotiations, we simply cannot hold up the already tight negotiating timeline by providing for a further approval process prior to negotiations ending. It must be for the Government, not Parliament, to set our goals for the negotiations on the UK’s exit from the EU, and to conduct them.

As I said in my response to the first amendment that we considered today, the Government have been clear from the start that Parliament will get a vote on the final deal, when Parliament will have the final say on the withdrawal agreement and terms for our future relationship, as soon as possible after the negotiations have concluded. Only if Parliament supports that Motion will the Government bring forward the withdrawal agreement and implementation Bill to give the withdrawal agreement domestic legal effect. The Government will then introduce further legislation where it is needed to implement the terms of the future relationship in UK law, providing yet further opportunities for proper parliamentary scrutiny.

Debates in this place and the work of the committees of both Houses represent valuable forums and opportunities for parliamentary scrutiny, and we have used Parliament’s input to shape our approach to negotiations so far. Indeed, I conclude by quoting some wise words from our own House’s EU Committee’s fourth report of 2016-17, titled Brexit: Parliamentary Scrutiny:

“Parliament should not seek to micromanage the negotiations. The Government will conduct the negotiations on behalf of the United Kingdom, and, like any negotiator, it will need room to manoeuvre if it is to secure a good outcome”.

My noble friend Lord Boswell will no doubt not let me ignore the fact that the report goes on to call for the avoidance of “accountability after the fact”, but I hope that the House will agree that the right response is not to go to the extremes of micromanagement by Parliament. I hope, therefore, that the noble Lord feels able to withdraw his amendment tonight.

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I finish by saying that Amendment 62 is not trying to do anything outrageous. It is setting a very simple signpost. It comes into effect only if the House of Commons—not the House of Lords—declines to approve and then it says quite clearly what happens. It asks for the status quo and an extension of time so that something else can be worked out. I think Amendment 62 is very reasonable. I would even hope that the Government might think about accepting it because it offers us a way forward. I hope that we will feel able to take it.

[Baroness Hayter of Kentish Town]

My Lords, the case has been made that should Parliament fail to approve the Government’s withdrawal deal, the Government should pause the Article 50 process and go back to the negotiating table. That might appear to be a sensible, common-sense—in the words of the noble Lord, Lord Cormack—possibly even essential proposal. Indeed, it was one of the arguments we used when we urged the Government to remove the fixed date for exit in the Bill—we will return to that next week but I am sure they are aware of that—to give the flexibility they may need in exactly those circumstances.

However, I fear that the particular route of Amendment 62 runs counter to the whole thrust of what we have just agreed in Amendment 49. Should the Government’s deal be voted down, the consequences of that failure to negotiate a satisfactory outcome and to win the support of Parliament for it would indeed be extremely serious. Amendment 49 says that in those circumstances it should be the Commons rather than the Government which starts to take charge. The Commons may well decide to take the route suggested in Amendment 62 with a quick letter to the EU asking it to consider an extension. It might consider as an alternative that it wants a referendum. It might decide that it wants to withdraw the Article 50 trigger altogether rather than just extend it, as set out in the later Amendment 57 from the noble Lord, Lord Wigley.

However, today is not the time to speculate which of those would be the right outcome for the House of Commons in those circumstances. We cannot know now and we certainly should not try to second-guess the correct option if there is not a majority in the Commons for the deal that has been negotiated.

It would be a shame if in any way the amendment appears to put the initiative back into the hands of Ministers, rather than the Commons. Amendment 49 said it was for the Commons, not the Executive, to take the next step should we find ourselves in that position. On that basis, we will be abstaining on Amendment 62—assuming that it is dealt with tonight, rather than early in the morning. Our reason is that it is tangential or even superfluous—rather than objectionable—and could be seen to conflict with what we have just agreed at 5 pm today in Amendment 49. It narrows, rather than widens, the options the Commons would have should the final deal be voted down.

[Lord Reid of Cardowan]

I welcome the constructive nature of my noble friend’s criticism, if you follow me. I am not sure that the two are incompatible. I am not sure that the House of Commons can actually, in international relations, speak for a sovereign state the way that a Government have to speak for a sovereign state. I take it from what my noble friend said that she is not ruling out the idea but objects to the imperative nature of it and the apparent conflicts with what was passed earlier. In that case, I hope that she and the Government will engage in seeing how we could reconcile those apparent differences.

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[Lord Wigley]

My Lords, the first objective of the proposed new clause is to test whether the Article 50 notice is revocable. If so, its second objective is to suggest that in certain circumstances the Government might avail themselves of that option. Clearly, that could be an issue if we find ourselves with a no deal Brexit or a breakdown in negotiations at the very last moment. We touched on aspects of this in an earlier debate.

There have been no rulings on the revocability of Article 50. It is widely assumed that the interpretation of the treaty could ultimately be a matter for the Court of Justice of the European Union, although I noted the qualifications outlined earlier by the noble Lord, Lord Kerr, in that context. The parties to the Gina Miller case assumed that notice of withdrawal is irrevocable. However, a preponderance of academic opinion maintains that it is revocable. One attempt to refer to the CJEU for a ruling was dropped—the Dublin case—on the basis of costs, as I understand it. Another—the Edinburgh case—is in the process of being appealed.

There is considerable opinion that an Article 50 notice could be revoked. Professor Closa has raised a number of formal and substantive objections to the assumption of Article 50’s irrevocability; the most compelling one draws on a comparative assessment of international law and practice under which a withdrawing state is bestowed a cooling-off period, allowing it to change its decision. Furthermore, Donald Tusk, President of the European Council, has asserted in his political capacity that on conclusion of the Article 50 negotiation process, the status quo could be maintained, meaning that if the UK was not happy with the agreed terms of Brexit, it could opt to continue to be a member of the EU.

The interpretation of Article 50, if one were needed, would be a matter of EU, not UK, law. The EU treaty is silent on the matter of revocability, but under Article 267 of the TFEU, there could be a role for the CJEU in determining whether an Article 50(2) notice can be withdrawn if a member state that has served notice of an intention to withdraw changes its mind. There is a general principle of international law, set out in Article 68 of the Vienna Convention on the Law of Treaties, that a notification of intention to withdraw from a treaty,

“may be revoked at any time before it takes effect”.

This provision does not override any specific arrangements in a treaty, but are questions about the decision to trigger Article 50 under national constitutional arrangements relevant to the CJEU? If a court of last instance has some uncertainty as to the correct interpretation of EU law, it must refer a question on the interpretation of EU law or the EU treaties to the CJEU, but not, I stress, if the national court decides that something is clear “beyond reasonable doubt”. This is known as the “acte clair doctrine” and has been established in the case law of the CJEU. The courts have not ruled on revocability. I therefore contend that the amendment is both valid and necessary and I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, for the reasons I have given before, the amendment restricts what we did on Amendment 49 so I have some queries about its wording. However, on the question of revocability, if we came to a point in Parliament where we were looking at the next steps, should the deal not be accepted, it would be important for Parliament to know as far as the Government do the advice on this.

There are examples of legal advice given to the Government being disclosed to Parliament where it has been relevant to an Act before it. Clearly, the Government will have got legal advice on the question posed by the noble Lord, Lord Wigley; can the Minister indicate whether that could be shared with Parliament?

[Lord Callanan]

My Lords, I understand the intention of the noble Lord, Lord Wigley. He is concerned, as are many other noble Lords, with the consequences of failing to reach an agreement with the EU or the equally unpropitious scenario of Parliament rejecting the terms of a deal that has been reached. The noble Lord’s amendment goes even further than that tabled by the noble Viscount, Lord Hailsham, in that it dictates, rather than leaves open, what should happen next in the event that the UK and the EU do not reach an agreement on the terms of our withdrawal; or if Parliament does not approve the terms of the withdrawal agreement, our notification under Article 50 should be revoked.

As I have explained already today, it is not constitutionally acceptable for Parliament to dictate the conduct of diplomacy in that way. Moreover, we are confident that we will reach a positive deal with the EU which Parliament will support. This is indisputably in the mutual interests of both the UK and the EU. Parliament will have a clear choice: to accept the deal we have negotiated or move forward without a deal. Ultimately, if Parliament chooses to reject the deal then we will leave the EU with no deal in March 2019.

The Government have always been clear what the outcome of failing to reach a withdrawal agreement would be. We are leaving the EU and will leave with a deal or without one. It is not a scenario that anybody relishes, least of all me, but it is also not one that should come as a surprise. The UK voted to leave the EU, Parliament voted to trigger the notification of withdrawal Act and the Government are honour bound to deliver on that instruction. We have been clear throughout that as a matter of firm policy we will not seek to revoke our notice under Article 50.

I therefore hope that the noble Lord will withdraw his amendment. I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if the noble Lord—

[Baroness Hayter of Kentish Town]

Do I take it from that that the Minister is not going to answer my question?

[Lord Callanan]

You can take it from that, yes.

I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if the noble Lord wishes to test the opinion of the House he should do so now.

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[Lord Liddle (Lab)]

My Lords, I rise briefly to support my noble friend and the noble Lord, Lord Bilimoria, on their remarks. We know that the Government do not have a policy on this issue. We can read in the Financial Times that there will be a great debate tomorrow. The Minister smiles, but he knows perfectly well that it is true that the Government have not resolved the question of what customs model they will go for. This is an extraordinary situation. It is now 22 months since the Brexit vote and yet the Government have not got a policy on the fundamental point of how we will make Brexit work. It is a failure of massive proportions on the Government’s part. I want to hear an apology to business from the Minister for the fact that the Government’s political divisions have basically led to a situation in which business is facing a serious cliff edge. They call themselves the “party of business”. What serious claim have the Benches opposite to be the party of business, given the way they have behaved since the EU referendum?

I also say to my own side that I fully support the amendment we passed on the customs union. I was greatly cheered up by it. It is a breach in this wall of stupidity that the Government have erected, but it is not a complete solution to the business problems that people have talked about. It does not solve entirely the problem of customs checks because of rules of origin and issues with agricultural produce and all the rest. It certainly does not solve the Northern Irish border problem on its own. It does not address the fundamental economic point that it completely neglects services—the dynamic part of our economy where our exports are growing, where we have a strong surplus and which is our economic future. This is a terrible, woeful neglect on the part of the Government of the key, dynamic, entrepreneurial sectors of the British economy. How can they claim to be the party of business?

[Baroness Hayter of Kentish Town]

My Lords, the issue raised by the amendment is key to how we depart the EU. Indeed, the urgency of sorting out the logistics, costs and procedures of being outside our current trading arrangements has already been made clear. It should not need repeating that 44% of our goods exports go to the EU, with more than 50% of imports coming from the EU, making the mutual case for continued tariff-free trade unanswerable.

As the CBI says, should the current arrangements—a simple single form for our exporters—change to,

“a 12-page form for each batch of goods”,

where,

“Every consignment will also need a VAT registration and certificates of origin, declaring how much of each product has been made where”,

costs will rise disproportionally. Indeed, one major retailer foresees,

“a five- to ten-fold increase in border documentation”,

should Britain leave the customs union, with a possible extra 200,000 UK businesses having to make customs declarations for the first time.

As we have said, the high degree of integration between UK and EU supply chains means that any new friction—bound to be slow and costly—would force businesses to adapt the way they do business, including over choice of supplier and extra storage space for just-in-time models and such issues. We have already heard of the food and drink industry: 90% of imports and exports of food and non-alcoholic drink are with the EU or those countries with whom the EU has trade arrangements. For manufacturing, according to the EEF, agreeing a preferential set of rules of origin with the EU will be crucial given the complexity of the supply chain and the origin of component parts.

We know all that; we have heard about it in this House before and have heard it again this evening. What I did not know until last week—maybe the Minister can correct what is being said—is that not one single Minister from his department has been down to the Port of Dover to see the problems that will arise there. Lorries coming from outside the customs union are currently subject to about 45 minutes of checks and the same would happen if we were outside the customs union. We understand that neither he nor any of his colleagues has been down there to witness that. Perhaps he could put us right.

The concentration on solving the issues highlighted by the agreement are real ones which we support. Clearly, as I think those behind me know, we might have a little difficulty with some of the words in this amendment but the issues raised by it, which the Government must solve, are ones to which we clearly would add our support.

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[Baroness Ludford (LD)]

My Lords, as has just been said, the price of the Government’s failure to accept the advice of this House and its EU Committee to offer a unilateral guarantee to the 5 million affected citizens is being paid by those citizens in anxiety, distress and distrust. As a result of taking the bargaining chip approach mentioned by several noble Lords, rather than a simple, light-touch, declaratory procedure, there are mounting concerns about the process, not least in the light of the Windrush scandal. There may be tens of thousands or hundreds of thousands of people in that group, but there are 3.5 million EU and EEA citizens here and 1.5 million UK citizens in the EU 27, so altogether that is 5 million people. What assurances can the Government give about the staffing and capacity of the relevant section of the Home Office that will deal with the settled status application process and about the testing plans? Those of us affected by the TSB fiasco are very conscious of the need for good testing and communication plans for customers.

My noble friend mentioned what is apparently the current plan, which means that people will not be able to apply online from Apple devices, such as iPhones, only from Android devices. Apparently Home Office officials told MEPs last week that people could borrow their friends’ Android devices to complete the process. That seems a little bizarre. Will an offline process be available for people without digital skills or access to computers? What are the plans for communications, appeal and redress? We know that the draft withdrawal agreement requires independent oversight of the process, but can the Government give us more of an idea of the practicalities and of how they plan to make sure that vulnerable people are not excluded? A report last week from the Migration Observatory expressed concern about people potentially being excluded. The Government have been ruled to be acting illegally in trying to deport rough sleepers, who are not necessarily in breach of EU free movement law. Is everybody to be included? Have the Government set a cost? Today’s letter from the representative of the European Parliament, Guy Verhofstadt, to the incoming Home Secretary, Sajid Javid, says that the European Parliament expects there to be a cost-free process for applicants and raises other systems issues. He also raises the crucial issue of the need for full rights under the new EU data protection law—the GDPR—to apply, not the Government’s planned exemption. Without these rights, if something goes wrong, people will not be able to find out and get their data corrected. That is a cause that these Benches have championed, and we look forward to others coming on board with that demand.

Can the Government clear up something that has been bothering me? What exactly are they saying about comprehensive sickness insurance? We have had evidence, and this has been said by Ministers in public, that there will be no need to demonstrate the holding of comprehensive sickness insurance as part of the application process for settled status, but the draft withdrawal agreement seems to imply that there will still be a requirement to hold it. So is there a difference between having to hold comprehensive sickness insurance and having to demonstrate it as an evidential requirement? Could the Government clarify exactly what will happen to people who in the past were told they needed CSI? What happens in the application process?

Could the Government clarify the omission from the draft withdrawal agreement of free-movement rights among the EU 27 for Brits who are settled in one of the member states? There is huge concern, particularly among people whose job requires them to move around. I see the noble Lord, Lord Callanan, in his place. He and I have depended in the past, as Members of the European Parliament, on the skills of freelance interpreters and translators. Not only do they move around between Brussels and Strasbourg but they might work for other international organisations or businesses, so they live in one member state but travel all over the EU. They need the right to work across borders within the EU 27. What exactly accounts for the gap in the withdrawal agreement?

We do not know what will happen about post-Brexit immigration but it looks as though it will be very similar to EU free movement, except with a lot more red tape, bureaucracy and cost, and less freedom. That is not a terribly good bargain. We are suffering a lot in the process of the Government’s Brexit demands on citizens, and I ask for some answers.

[Baroness Hayter of Kentish Town]

My Lords, I would have hoped that the noble Baronesses, Lady Ludford and Lady D’Souza, and my noble friends Lady Smith and Lord Judd would not have needed to table this amendment. It should have been self-evident that those living here who arrived with the reasonable expectation of their right to remain on the same terms would have had that guaranteed by the Government.

Sadly, though, it has proved essential that the movers table the amendment since EU residents retain a level of anxiety born not just of the referendum result but of the Government’s subsequent actions. First, at the time of the Article 50 Bill, the Government refused to guarantee their existing rights and chose instead to use them as bargaining chips, as we have heard, using their majority in the Commons to overturn your Lordships’ amendment. Secondly, more than a year later, there is still no cast-iron guarantee, despite Ministers promising early agreement on this. Indeed, the Government have failed to implement what the Prime Minister said in December would be on offer to EU citizens, and we therefore need to put it into law. That is a priority for the Bill. We cannot wait until December to give these people certainty. They have decisions to make—on schooling, jobs and homes, and perhaps on marriages and children—and need to know where they stand.

Thirdly, in Committee, the noble and learned Lord, Lord Keen, who is not in his place now, insisted that,

“you can only have the domestic law once you have the international treaty, because it is from the international treaty rights and obligations that you allow the domestic rights and obligations to be brought into our domestic law”.—[Official Report, 7/3/18; cols. 1078-79.]

I do not know if he was deliberately misunderstanding what we were asking but, in effect, he was saying that the withdrawal agreement must come first and that without it the Government would refuse to guarantee existing residents their existing rights. That is not necessary in the treaty. It may be a decision by the Government but it is certainly not the case in law. We are not asking that the Government wait until we hear from the EU 27 how they will react to our citizens living there. We are asking the Government to affirm now something it is in the UK Parliament’s gift to decide: what rights we will give to EU citizens currently living here legally.

Lastly, we need this because of the disastrous mishandling, which has just been mentioned, of another group of people also living here quite lawfully: the Windrush generation. Given their overwhelming right to be here, the length of time of their residency and the contribution they have made to the economy, is it any wonder that more recent—albeit equally legal—residents, EU citizens, question whether vague promises of concern will harden into legal guarantees?

The amendment is necessary, morally right and legally justified, so I hope that, even at this late hour, the Government will accept it.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Newby (LD)]

My Lords, I too thank the Minister—I fear that that will not necessarily be very common, so I am pleased to be able to do so now. I am sure he will agree with me that these amendments are sensible, appropriate and necessary.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I commend the Government for these amendments, which respond to and accept the arguments made in Committee. As I argued then, and there is a reason for me repeating this, the very way that we set up quangos—how they are appointed, funded and run, and particularly their reporting structures and independence from both government and any other organisation they happen to be regulating—is key to how they work, hence the need for primary legislation so that we can interrogate all these things. That is why I very much welcome what has been said.

I am afraid, however, that I am led to make one comment, which is aimed not at the Minister but at friends of his in another place. After the vote last week on the customs union, we read in the Sun that the Government were going to remove those Conservative Peers who had voted for a customs union from their various positions on public bodies. I am absolutely certain that those threats, although mere briefings, did not emanate from anyone in this House. That is simply not the way that I have seen those on the Government Benches here work. They recognise the role of the Lords and that it is our job, on occasion, to ask the Commons to think again, even if sometimes that is a bit inconvenient when it comes from their own side. However, it was rather disturbing to learn that there are certain people around No. 10 who could, even for a moment, think that it would be right to undermine the independence and arm’s-length nature of such bodies, as is often written into their statutes, simply because Members of the House of Lords voted in a certain way. Everything I know about Ministers in this House means I know that not only were they not involved in this but they were probably as shocked as I was. Perhaps the Minister would like to take the opportunity to distance himself from such threats and reaffirm what I know to be government policy: that any appointment to such bodies is done without fear or favour and nobody would be taken off them for a choice that they made in this House.

On the essence of the amendment, and particularly given the role of the Minister and his officials, we are happy to support the government amendments.

[Lord Callanan]

My Lords, I am grateful to all noble Lords who have contributed to this debate. There were relatively few but I thank them and I hope these amendments satisfy the concerns that have been previously raised in the many discussions I have had with noble Lords about this matter. It is proof that, despite the accusations that have been made, we are listening and will respond appropriately if we deem something to be necessary and it improves the legislation, which on this occasion we do.

I am not going to comment on every press article. Precise recruitment criteria are set down for these posts. I am sure that those criteria will be followed and that all appointments will be made on merit.

I hope noble Lords welcome the reassurance that these amendments provide and recognise that this reflects the sincerity of the Government’s commitment to narrowing the scope of the powers wherever practicable without compromising the purpose of the Bill.

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[Baroness Kramer (LD)]

This is another opportunity to thank the Minister because some peace of mind will now be provided about the structure of Clause 7. We understand now that the Government have stepped away from any capability to introduce new or increased fees.

I also thank the Minister for clarifying what a charge is. Many in this House have been trying to understand exactly how it could be framed. I hope the fact that he has now described it in the House will, in effect, put that definition on the record so that no future Government will attempt to use the word “charge” in order to circumvent these various constraints. Again, on this occasion, I thank the Minister.

[Baroness Hayter of Kentish Town]

To make sure that the Minister blushes fully, we, too, will take the opportunity to say again that we think that this is a good improvement. We thank those who have been involved in the drafting of the amendment and we support it.

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[Lord Judge (CB)]

My Lords, the issue that these amendments give rise to is quite an important constitutional one. This will not be a great moment after having had the excitement of a vote involving 500 or more Peers, but if we could add up to 100 it would be very successful. There are two reasons why there is no great interest in this issue, and one is that we have become habituated to the creation of criminal offences by regulation. It happened under the last Labour Government and the coalition Government, and it happens under this Government. Over the past 20 to 25 years there has been a proliferation of these clauses. Constitutionally, that is an aberration. We should not be creating criminal offences that can lead to an individual being imprisoned by regulation that, for the reasons we have discussed over the past few weeks, is controlled only by negative or affirmative resolution, which, as we have seen, is no sort of control at all.

The constitutional principle was upheld during the debates on the sanctions Bill. Those noble Lords who were here will remember a very significant vote in favour of an amendment to that Bill which would have deleted the ability of a Minister of the Crown to create criminal offences by regulation. There was cross-party support for the amendment and, as I say, the Government were defeated. The end result was that I had a series of meetings with the noble Baroness, Lady Bowles, who is not in her place. We then met with the Treasury Minister, with the Bill team and twice with parliamentary counsel to argue about how best to preserve constitutional certainty in relation to the creation of criminal offences. It was not easy. One significant point was made that certainly affected me: there will be occasions when it may be necessary—to use the word we now have—to allow for an offence to be created by regulation. A compromise was put forward and was accepted. It was put before the other place and, on this particular issue, that Bill will now proceed.

Faced with that, it seemed to me that we had to reflect again on the absolute nature of this amendment. I see that the Government have put forward proposals in government Amendments 83C and 83G which coincide with the suggestions made by the Constitution Committee, of which I am a member. I am speaking today only for myself, of course, not for the committee. The Government have recognised that there needs to be a significant increase in the element of parliamentary scrutiny and, if I may say so, proposals to encourage ministerial hesitation before proceeding by way of regulations to create criminal offences.

I really am not suggesting more than this. This is a start. It is a pullback from a process to which, as I said, we have become habituated. It is a process; it is an advance. It had not been made when the present Bill came before the House. The Bill has now come before the House, and we have discussed it. We have debated it in Committee, we have now discussed it again and ministerial amendments have been made. I welcome those, as I said at the start. I welcome the proposal that these amendments should be made. Ultimately, it is not my decision whether Amendments 83C and 83G should be supported in the House. If they were, that would provide a significant improvement to the current arrangements. There is nothing more I can usefully say. I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, we have heard from the noble and learned Lord, Lord Judge, an indication of where the Government have arrived on this issue and that there will in future be a document stating why this measure is needed and what necessitated it, according to the Minister.

The Government’s changes, which I welcome, do not go as far as Amendment 34 and the others in the group, but they insert an element of both written explanation and scrutiny of the use of these powers. I still doubt the need for these powers. Since the Bill was introduced in the Commons—not even when it came here—I have been asking for examples of where such new offences might need to be created. Finally, after numerous times of asking, the Government this week were able to provide just one example; that is all. It related to the marketing of medicine where it is an offence to produce false or misleading information in applications for approvals. After six months, that was the only example they gave of where such a new criminal offence, imprisonable for up to two years, might be needed, so I am still not entirely persuaded. However, given the new procedure that will come up later in the Bill, it should include the written statement as part of the Explanatory Memorandum and say that such powers will be available only in relation to our exit from the EU anyway. If the Minister could confirm that they are also subject to the timings of sunset clauses, we would see the Government’s amendments as a great improvement.

Finally, these will be orders that the House could not simply debate or put down a regret Motion about. However, if necessary, there is a backstop so that if we were not persuaded by the written statement, we would still be able to ensure that the orders did not go ahead. I hope that will never happen. I hope that they will not be used that much; clearly, there is no plethora of examples where the Government feel the need for them. Given where the extra scrutiny has now been inserted, given that there is a sunset on these powers—I think I am right in saying that—and given that they will be used only for the purpose of exiting the EU, we would certainly be content with the noble and learned Lord, Lord Judge, withdrawing his amendment.

[Baroness Goldie (Con)]

My Lords, it is important that we have returned to this issue after our debate in Committee, during which many noble Lords raised concerns about the creation of criminal offences through secondary legislation. I am grateful to the noble and learned Lord, Lord Judge, for Amendments 34, 44, 54 and 97, which seek to prevent the key powers in the Bill from creating criminal offences. I think we are all in agreement that the power to create criminal offences, above all things, is not to be taken lightly. These decisions can have huge impacts on people’s lives. Therefore they are decisions that the Government take very seriously. Parliament is absolutely right to give full scrutiny to proposals of this kind.

The Government listened very carefully to the debate we had in Committee and respect and understand the concerns raised. I pay tribute to the noble and learned Lord, Lord Judge, for his constructive approach to this matter. The Government believe that serious omissions or weaknesses to law enforcement could arise if the Bill did not include a capacity to create criminal offences in certain circumstances. It is therefore the Government’s view that the ability of the key powers to create criminal offences must remain in the Bill, for reasons I shall endeavour to explain. I realise that the noble and learned Lord and the noble Baroness, Lady Hayter, are very conversant with these issues, but perhaps other noble Lords would welcome a slight expansion of the Government’s approach to this.

Before I endeavour to expand on these reasons, I take this opportunity to highlight the amendment tabled by the Government—to which the noble and learned Lord referred and of which I am sure noble Lords are all aware—requiring a statement to be made alongside all instruments made under the main powers that seek to create a criminal offence. The statement will be made in writing by a Minister before the instrument is laid and then usually published in the Explanatory Memorandum to inform the deliberations of committees and the House. I am happy to talk with the noble Baroness further about the form in which the statement will be made to the House. One option might be to deposit the statement in the House.

The statement will explain why, in the relevant Minister’s opinion, there are good reasons for creating the offence and for the penalty provided in respect of it. This is in line with the approach taken in the Sanctions and Anti-Money Laundering Bill, and it will increase the level of transparency, ensuring that where the Government seek to create a criminal offence the Minister’s reasoning is clear and justified to Parliament. Of course, if either this House or the other place feels that these reasons are not good enough, I expect MPs and certainly noble Lords to vote against the instrument—I remind noble Lords that all statutory instruments made under the main powers in the Bill creating criminal offences must be affirmative. If noble Lords did not wish to take that dramatic option but wanted to express their dissatisfaction with the proposal, I hope they would avail themselves of other options to express this such as regret Motions, inviting the Minister to give evidence before the sifting sub-committee of the Secondary Legislation Scrutiny Committee, or asking for the Minister to justify himself or herself before a committee of this House or of the other place, such as the Exiting the European Union Committee or other relevant departmental Select Committee.

I understand the amendment will be discussed in detail once we reach the debate on Schedule 7. I shall be happy to go into further detail then. However, I will say that the Government have tabled the amendment to increase the scrutiny of the main powers, rather than to reduce their scope or remove the power completely because of its important function. The Bill does, of course, limit the ability to create criminal offences with the sunsets on both the correcting power, which is sunset at two years after exit day by Clause 7(8), and on Clause 9, which is sunset at exit day as set out in Clause 9(4). I stress to noble Lords that these are the only powers—other than Clause 8; I hope the House accepts the Government’s amendment to remove that clause—that could create a criminal offence.

Upon exiting the EU, existing criminal offences that relate to the EU may require amending to ensure that previous criminal conduct remains criminal—for example to correct deficient references to the EU, EU bodies or EU legislation. If these are left unaddressed, the protections provided by having an offence in place will fall away. The reality of this would be a green light for criminal behaviour to go unpunished, leaving businesses and individuals unprotected from what was previously deemed so unacceptable that it was made criminal.

The noble Baroness, Lady Hayter, asked about examples. Some examples were given in Committee but there may be further examples that she is not aware of—if she is, I ask her to indulge me—where it might be appropriate, depending on negotiation outcomes with the EU, to amend existing offences or to create new ones. Certain financial services firms that are regulated at an EU level may need to be brought into the UK regulatory regime. HM Treasury is therefore considering amending the offence of misleading a regulator to include trade repositories misleading the FCA and third-country central counterparties misleading the Bank of England, if their regulation is transferred from the European Securities and Markets Authority. Without this, these important City operators, unlike other firms already supervised in the UK and within our regulatory perimeter, would not be subject to a criminal penalty when misleading the regulators which ensure their good conduct and the stability of our financial system. I cannot believe that any noble Lords would want this.

--- Later in debate ---

[Baroness Smith of Newnham (LD)]

My Lords, I will speak briefly about Clause 8 but, like the noble Baroness, Lady McIntosh, I have signed Amendment 47. That amendment would become obsolete if Clause 8 disappears. Like my noble friend Lord Beith, I am perhaps a little suspicious to see an amendment in the names of the Minister and the noble Baroness, Lady Hayter. To see the Government and Opposition Front Benches agreeing makes one a little suspicious but anyway, as my noble friend suggests, perhaps the Government think that they do not need Clause 8.

One of the issues I want to raise briefly is a genuine question because I have read different things by academic colleagues on where we are in terms of the EEA from a legal perspective. Amendment 47 refers to remaining a member of the European Economic Area. Before the Minister shakes his head and says, “No, no, no, we’re leaving the EEA”, there is a question about our membership. We are a member of the EEA as a member of the European Union. All EU members are members of the European Economic Area. My understanding is that we are individually members, not just as part of the EU 28, so do we legally have to resign from the EEA? The assumption is that we are there automatically as a member of the EU. That was my genuine question. A slightly more facetious question would be: given how keen noble Lords who favour Brexit are on free trade, should we perhaps be thinking about going back to EFTA where we started off way back in the 1950s?

[Baroness Hayter of Kentish Town]

It is late at night and I cannot resist it. For the Liberal Democrats who were in coalition with the Conservatives for five years to be suspicious about my name on one amendment is a bit rich. On the whole I resist doing this, but I am afraid I was led into it. I thought the Minister would enjoy that.

There are two debates here. On Amendment 43, to which I also have my name, as does the noble Baroness, Lady Kramer—but I hope that does not give the noble Baroness, Lady Smith, too many worries—I associate myself with what was said by the no longer young but, I gather, still irresponsible noble Lord, Lord Kerr. I particularly look forward to the answers to the serious questions raised about Schedule 4, which is referred to in Amendment 104.

I very happily put my name to Amendment 47A. Were any of the things on the international agreement arising out of the withdrawal deal to come to pass, the clause could be in the withdrawal and implementation Bill, which is probably a much better place because it would be much more specific. I am not in favour of wide powers just in case. We have too many just-in-case powers in the Bill as it stands, so the deletion of Clause 8 is an improvement to the Bill.

Since Amendment 47 has been moved into this group, it is probably right that I should say a word about the Opposition’s position on it. Since the noble Baroness, Lady Smith, is an academic and much better read than I am, I am sure she is familiar with the House of Commons briefing on this. It is clear that the vast majority of legal advice, certainly that which I had when I was in Brussels and elsewhere, is that the EEA combines EFTA and the EU—there is an even more expert head nodding. So, it was a nice try, but it is a red herring, and one of the things that we do not want to do is to give people false hope that there is a way out of the mess that this Government got us into—sorry about that.

That is why I shall a word about rejoining EFTA. I worked for an EFTA organisation many years ago. It was a very nice, friendly body at the time, but it was larger than it is now. There is an idea that we could just rejoin and that it would accept us. The Prime Minister of the largest EFTA country has already said, “Ahem. Hang on a moment. This is going to be a little more difficult and complicated than you think”. There are fewer than 14 million people, I think, in the EFTA countries. That is more than in London but not bigger than London and Wales combined. There are serious questions about whether structures that suit their economies, size and way of working in marketing and in other things would suit our economy with 66 million people. I worry that people think there is a nice, easy option. On this side, we are not persuaded that it would be easy or necessarily correct for us.