European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Wilson of Dinton (CB)]

The noble Lords who have tabled this amendment have an important point. I want to add a postscript to the very wise words of my noble friend Lord Kerr. In the 1960s, half a century ago, when we were moving in the other direction, I was privileged to be present at a discussion about whether we should apply again to join the Common Market after we had been rebuffed by General De Gaulle. The discussion involved the former Prime Minister, Mr Macmillan, and the man who had led the Treasury team that made the first application, Frank Lee. All I want to say is that they were agreed that the main reason for applying to join the Common Market was defence, security and being in the room. Of course there were a huge number of economic and other arguments, but they saw Britain as isolated. They thought that we would be more valuable to the United States if we were in the room in Europe; that we had a lot to offer and that Europe would want to have it; and that it was important for the prosperity of this country that we should play our part in the room, in alliance with the rest of the European union. That was probably the most important factor in applying to go in. As we leave, we have to think how we protect ourselves. The noble Lord, Lord Kerr, is absolutely right and the noble Lords opposite have an important point, which is why I support their amendment.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, there is always something very special about hearing history from those who are not reading it from books but were there.

Given the overriding importance of the security of the nation and remembering, even further back, that the EU was born out of the desire to end war, bring peace and establish co-operation across Europe—that was not simply the reason for us being there but, even before that, the reason for its creation—we simply cannot risk just slipping out of the EU’s foreign and security policy, which we helped not to fashion at the beginning but to fashion in its development, without a serious debate in Parliament.

In Committee, regrettably, the Minister, the noble Baroness, Lady Goldie, who I think will also respond this evening, claimed that she was “a very lowly mortal”—I doubt that in any circumstances—and was,

“not privy to the detail of the negotiations”,

so she could not report on the progress of talks on this vital issue. I have to say I do not think that is good enough, either for this House or for the Bill. I said at the time that Clause 9 refers to the withdrawal deal. It is our fervent hope that before we sign off on that deal—for me, this should be included in that deal—there will be a satisfactory outcome regarding our future co-ordination with the EU on foreign policy and defence. It is still possible that the Government will try to remove Clause 9 but, until they do, the deal is pertinent. It is not good enough for the Minister this evening to repeat her earlier reliance on the so-called meaningful vote on the final deal, which has been promised by the Government. That was her excuse for saying that the Bill was,

“not the appropriate forum to raise these concerns”.—[Official Report, 26/2/18; cols. 502-03.]

There are two reasons why that argument is at fault. The first is because, at the moment, there is no such thing as a meaningful vote; to the contrary, there is only a meaningless vote, as it will be on a Motion with no legislative consequence. It will be a bit like the Motion that will be in the House of Commons on Thursday on the customs union, which the Government are so afraid of losing that they will not even vote on it. They are going to abstain and when that vote is won, they will ignore it. At the moment, that is the only vote that we have been promised on the deal. Secondly and, I guess, more importantly, I do not think we should be sending the Bill back to the Commons unless we are sure, in the way in which the amendment provides, that the Government are already working on and will take the necessary action before exit date to secure an ongoing continuation of security and foreign policy with the EU. It is no good to say that we can wait until the withdrawal deal—our vote on that could be weeks before we leave—or that it is not for us to discuss it.

In the words of the noble Lord, Lord Kerr, we need a diagram or a plan. I have a better suggestion for the Minister: she should just get the noble Lord to write it for her, because we might then have something that would take us forward. We need to know what is being discussed and, assuming that there is a plan—I hope that the noble Baroness, Lady Smith, is wrong and that there is something on paper—we need to know what it is, so that we have confidence that this will be fully in hand and workable on the day that we leave.

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[Lord Paddick (LD)]

My Lords, I will speak to this amendment, to which I have added my name. I have spoken to former colleagues, particularly in the National Crime Agency, who have particular responsibility for European co-operation and they are very concerned about the potential consequences of our leaving the European Union. Clearly, in terms of counterterrorism intelligence, most arrangements are bilateral and therefore will not be affected, but bringing those people identified as terrorists to justice very much relies on European Union co-operation.

No doubt the Minister will say that this is an absolute priority for the Government. I have run out of fingers on which to count the number of absolute priorities that this Government have as far as leaving the European Union is concerned. Whichever Minister responds will say that of course it is in the interests of the United Kingdom and the European Union to maintain current levels of co-operation on these issues, but the important point that my noble friend has already been made, particularly in relation to the constitutional issues around Germany and extradition, is that the UK and the European Union may want the current arrangements to continue as far as possible, but the question is what is legally and constitutionally possible if the United Kingdom becomes a third party country and is not a member of the European Union.

There is one other issue related to the previous amendment, and that concerns the fact that we will no longer have a seat at the table at Europol. At the moment, the United Kingdom is central in directing the operations of Europol and in having influence over what Europol does, but it is not possible for a third party country to have that degree of involvement in, or that amount of influence over, Europol. Therefore, clearly British interests will lose out following any exit from the European Union.

Therefore, I ask the Minister to explain how these legal and constitutional obstacles will be overcome and how we will be able to be as influential and effective as we currently are in working with our European neighbours if we no longer have a seat at the table.

[Baroness Hayter of Kentish Town]

My Lords, it is really hard to overstate the importance of the issues raised this evening or, indeed, to understate the lack of government progress on them. It was in February of last year that the Government recognised the importance of the issues. Just so, but what action have they taken and what thought has been given to them since then? There was the welcome commitment to negotiate continued or enhanced co-operation in Munich, but what does that mean? We have heard little or nothing.

This evening we have heard from the noble Lords, Lord Paddick and Lord Wigley, and the noble Baroness, Lady Ludford, about Europol, about Eurojust from the noble Lord, Lord Wigley, about the European arrest warrant from everyone who has spoken, about European criminal records and about the Schengen Information System. These are networks that help to keep our people safe. It clearly cannot undermine any negotiations that the Government are having for us to know what they want to achieve, because we assume that they have already shared this with the EU 27. I wonder whether what they worry will undermine the negotiations is their obsession with the red line around the ECJ or their relationship with their own Back Benches. If not, why are we not hearing more?

I want to concentrate on the issue that is perhaps easiest to understand, which is the European arrest warrant, and not simply from the point of view of where the countries named by the noble Baroness, Lady Ludford, might have a difficulty with it. Are we going to recognise any arrest warrant from the other countries? We do not even know that yet. What access will our law enforcers have to the checks, records and intelligence sharing that they use not simply day by day but hour by hour? As the noble Lord, Lord Wigley, says, time is running out. We need some answers to that.

The amendment would ensure that the Government prioritised these issues over their concern with hard Brexiteers, who seem willing for the country to pay any price, even dropping out of the EAW, simply so that they can say, “Yeah, we’re shot of them”. That is a price that is too high to pay. It would put our security and justice outside an organised, functioning European system—one that has given us great confidence that we are being properly protected. This is an area where the Government need to give some leadership and come up with real proposals that can be implemented to keep all our people safe.

[Lord Callanan]

My Lords, I am grateful to the noble Baroness, Lady Ludford, for raising the important issues dealt with in her new clause proposed in Amendment 30, as it provides me with an opportunity to set out the Government’s position on internal security, law enforcement and criminal justice.

I want to begin by reiterating the Government’s commitment to securing the best possible outcomes for the UK in our negotiations with our European partners. As the Prime Minister made clear in her Munich speech, the UK is unconditionally committed to maintaining Europe’s security, now and after our withdrawal from the EU. The UK has been instrumental in developing many of the tools which the EU has at its disposal, and is a significant contributor. For example, the UK is in the top three of member states that contribute intelligence each day to the different databases within Europol. We want this to continue in a way that works for both the UK and for Europe so that we can respond quickly and effectively to the changing threats that we face, including from terrorism and serious and organised crime. I am grateful to the noble Baroness, Lady Ludford, for raising this important issue in Amendment 30.

The intention of this Bill is to create a snapshot of EU law as it applies in the UK immediately before exit day and then retain it within our domestic law following our departure. The UK has a long-standing tradition of ensuring that our rights and liberties are protected domestically and of fulfilling our international human rights obligations, which will continue irrespective of exit. The decision to leave the European Union does not change this. However, noble Lords will forgive me for repeating it, but the exact nature of our future relationship is a matter for negotiation. I assure noble Lords that the Government are already taking extensive action to prepare the ground for these negotiations.

The noble Baroness, Lady Kennedy of The Shaws, is not in her place, but she has tabled Amendment 66 in this group. I do not think that any noble Lords referred to this amendment, but it covers some areas that have been mentioned and so I will say a few words about that and about our objectives. Our Security, Law Enforcement and Criminal Justice partnership paper published in September last year outlined how we are seeking a relationship that provides for practical operational co-operation, including the European arrest warrant, facilitates data-driven law enforcement and allows for multilateral co-operation through EU agencies, including Europol and Eurojust. We believe that the UK and the EU should work together to design new, dynamic arrangements as part of our future partnership to continue and strengthen our close collaboration.

The Prime Minister has been clear that we are proposing a new treaty to underpin our future internal security relationships. With reference to paragraph (c) in the new clause proposed by the noble Baroness, Lady Kennedy, such a treaty will require an effective and independent means of resolving disputes that is respectful of the sovereignty of both the UK and the EU’s legal orders. The appropriate dispute resolution mechanism and the relationship between our courts will depend on the substance and context of the agreement, and so is a matter for negotiations and not for this Bill.

Let me address briefly some of the questions that the noble Baroness, Lady Ludford, asked me, about extradition from the EU using the European arrest warrant and, in particular, the implementation period. We certainly want to continue to be able to use the EAW to extradite people from the EU during the implementation period. The relevant provisions on this in the withdrawal agreement were not agreed and are hence marked as yellow, and discussions are continuing on this as we speak. However, we believe that it is in the interests of both the UK and EU member states that current capabilities are preserved during the implementation period, and we continue to make that case.

[Baroness Hayter of Kentish Town]

The Minister has answered only one part of the question—whether it would be possible that we would be able to extradite from other countries. I asked whether we were willing also to respect an arrest warrant from another country and to exercise that here.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I am a signatory to the amendment and would like to speak to it. The Government’s paper of last August on future customs arrangements proposed two customs schemes as the alternative to being in the customs union, one based on technology, described as “innovative”, the other with the UK acting as an agent for the EU for EU-bound goods, described as “unprecedented” and “challenging”. Those are words that, if in Jim Hacker’s vocabulary, would have attracted congratulations from Sir Humphrey for the Minister’s bravery.

The issues for manufacturing industries such as cars and aerospace have been covered by the noble Lords, Lord Kerr and Lord Patten. They are to do with supply chains, border checks and rules of origin. That all sounds like very dry stuff but it boils down to costs, delays and red tape affecting investment decisions and jobs. Staying in the customs union is an economic and industrial issue. The Freight Transport Association estimates that an even an extra two minutes checking every truck during peak hours could result in queues of almost 30 miles at border points.

The chief executive officer of Airbus, Tom Enders, has summed up the problems for his company. I say to the noble Lord, Lord Lamont, that Tom Enders sees leaving the customs union, not staying in it, as very damaging. He points out that during production parts of his company’s wings move between the UK and the EU multiple times before final assembly. This is typical for all our UK-assembled products and why the lack of clarity around the customs union and trade is hugely worrying. We think that across our operations and supply chains Brexit will affect 672 sites. Hard borders and regulatory divergence risk blocking trade, creating supply-chain logjams and causing our business to grind to a halt. This is not some esoteric question. Of course, being in the customs union does not solve all the problems; for example, it would be great to have participation in regulatory convergence as well. However, staying in the customs union is a necessary part of preserving the simplicity and streamlined nature of the manufacturing industry. The noble Lord, Lord Lamont, is right that remain is the gold standard, but let us at least go for silver.

As for the argument that being in a customs union would constrain our freedom to conclude third-party trade deals, the ones that we have by virtue of EU membership are far more valuable. Our food, animal welfare and environmental standards could be compromised by third-party agreements. Many potential partners will want immigration concessions, which has proved difficult. As has been noted by the noble Lord, Lord Lawson, you do not need a trade agreement to export, hence Germany exports four times as much to China as we do. That country has not been inhibited so why have we? That is something that we can do inside the customs union. As reported yesterday, China’s top diplomat in Brussels, its head of mission to the EU, has said that a UK deal with the EU is a precondition for trade talks with China. The Chinese need us to have a decent arrangement with the EU before they want to talk about it. If there is not a Brexit deal, they say, there will not be things to talk about. They need to know exactly how we are going to operate with the EU. I add that no member of the Commonwealth has wanted us to leave the EU, so praying that in aid is totally inappropriate.

Not only did people not vote in 2016 to leave the customs union—that was not on the ballot paper—they did not vote to lose their jobs, either. We should protect those jobs by pressing for Britain to stay in a customs union.

[Baroness Hayter of Kentish Town (Lab)]

My Lords—

[Lord Forsyth of Drumlean (Con)]

My Lords—

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[Lord Forsyth of Drumlean]

This is a debate. If I may, I will pick up one point as a point of information to my noble friend Lord Ridley, which was the suggestion that the customs union does not discriminate against African countries. Why is it that Germany exports more coffee than the whole of Africa? Answer: because there is a tariff barrier on any finished products. If African countries wish to export coffee beans, that is fine, but if they wish to turn them into an added-value product and create jobs and industries, they are subject to, I think, a 7% tariff. I would have thought that the noble Lord, with all his experience, would have known that, but it is typical of the way in which this campaign has been organised by the remainers: misleading the British public and trying to overturn the decision which the people made with the full knowledge of everything involved.

The noble Lord says, “Calm down”, but I believe in this House. I believe it has an important duty to carry out and it is quite outrageous that people are trying to use this House to overturn the wishes of the British people.

[Baroness Hayter of Kentish Town]

I am so delighted that I gave way to the noble Lord, Lord Forsyth, because he has exposed that it is not the Labour Party, nor is it this House, spreading disarray over Brexit: the Government are doing that quite well by themselves in the other House. We are saying that the Bill is a part of what started with Article 50: looking at how we leave the European Union. As we know, a part of what will come at the end will be our future relationship with the European Union. That is why it is absolutely correct that this House discusses it in this Bill.

On the particular amendment—of course the meat of it is Amendment 4 rather than Amendment 1—it is right for us to cover it, and it is right for us to support it today. It is right for the country. It is demanded, as we have heard, by industry and by trade unions. It is vital for the future of Ireland—although not repeated again today, we have heard that before. It will also get the Government off a hook of their own making: their adoption of the red line of leaving the customs union, which was taken without any impact assessment, without any consultation with business, investors, farmers, exporters or importers, and when the Prime Minister had a Commons majority. Come election night in 2017, soon after 2 am, David Davis admitted on air that the Government might have lost their mandate to exit the customs union. As he said,

“that’s what we put in front of the people, we’ll see tomorrow whether they’ve accepted that or not”.

They did not. There was no majority for that red line. There was no mandate for a hard Brexit.

This amendment is good for the governance of this country. It reflects the rejection of that part of the Government’s manifesto. It would save the economy £24 billion over the next 15 years, which ejection from the customs union would otherwise cost. The amendment would allow full access to European markets, no new impediments to trade, no reductions in standards, no tariffs on goods traded with the EU and common tariffs on goods imported from other countries. This presents no problems for increasing trade outwith the EU; as the noble Lord, Lord Patten, has already said, Germany exports more than we do to China. Even Liam Fox admitted that a customs union self-evidently does not prevent us from increasing bilateral trade with countries such as China. The CBI, as we have heard, stresses that the EU is businesses’ preferred market by far. Three-quarters of exporting companies are selling into the EU and the vast majority of them are SMEs. We have already heard the Japanese ambassador warning that Japan’s firms will leave Britain if Brexit makes it unprofitable to stay—that is a real risk with new tariffs, if we are outside the customs union. As we have heard, there is a high level of integration between the UK and EU supply chains, so checks, delays, and VAT charges all challenge the bottom line. Rules of origin, which we have heard about, could cost up to 15% of trade.

There are also physical challenges. The British Ports Association says that, with 95% of imports and exports handled by its ports, if we have anything like the customs checks that we now have on non-EU imports, it could take 45 minutes per lorry. A quarter of trade between the UK and continental Europe goes through the Channel Tunnel, as indeed does most of the Republic of Ireland’s road freight into mainland Europe. Folkestone—there is a bad joke coming—would look more like stone than folks. We had to have one—I warned your Lordships it was bad.

Last year, the CBI, the Institute of Directors, the British Chambers of Commerce, the EEF and the Federation of Small Businesses all called for tariff-free goods trade between the UK and the EU, in preference to the Government’s slightly weasel words of “as tariff-free as possible”. The CBI stresses that frictionless trade with the EU is businesses’ number one priority and that some form of a customs union is necessary to ensure frictionless trade and no hardening of the Irish border. We have heard already about Airbus, Boeing and Rolls-Royce all saying that a customs union would best support the free flow of goods. Ford, the biggest car manufacturer, argues that any sort of border restrictions or customs friction will be an inhibitor for us continuing to trade the way we have done. The Food and Drink Federation wants a tariff-free customs union. And so it goes on.

We have heard it from industry, we hear it from trade unions, we have heard it from Northern Ireland, and indeed southern Ireland, and it is the same for our regions. Those particularly identified by the Government’s impact assessments will be of interest to the Minister: the north-east and the West Midlands. Those are the areas that will be most affected by Brexit if we have more customs and less trade. They are major exporters of cars, food and other goods.

This amendment is not about us playing politics; it is not about us unscrambling Brexit: it is about how we leave the EU. It is about our future relationship once we are outside. All it asks is for the Government to seek to negotiate our participation in a customs union with the EU. We will support this for the sake of the economy and for the sake of the country.

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[Lord Wigley]

My Lords, I intervene briefly to support Amendment 8, moved by the noble Baroness, Lady McIntosh of Pickering, and supported by the noble Baroness, Lady Smith of Newnham, which also stands in my name. I spoke on this matter in Committee so I shall not repeat the points I made then. We were seeking greater clarity at that stage—and as far as I can see we still need that from the Minister—on the status of EU directives adopted but not implemented before exit day. I seek an assurance from the Minister that if an amendment of this kind is not accepted for inclusion in the Bill, the loose ends that will undoubtedly exist will be tied up by some other process later, whether in the implementation and withdrawal Bill or by some other device. Clearly some very valid issues have been raised by the noble Baroness, Lady McIntosh, and we need to be sure that they have been looked after in the legislative process.

[Baroness Hayter of Kentish Town]

My Lords, as has been said, this is an issue for which the Government simply have to produce a solution. For once I am quite glad that I am at the Dispatch Box on this side of the Chamber so it is not my problem—but I do know that it is a problem that the Government absolutely must solve. Let us consider some of the subjects covered by the list in the amendment: safeguards for child suspects in criminal proceedings; the recognition of professional qualifications, which will be extraordinarily important for business; health and safety; and the trademarks directive. We cannot afford to have gaps, particularly with something such as trademarks. This list covers issues that are already our policy and have been adopted with our consent, so we need to find a way of getting them into our legislation. How that can be done, I hope the Minister will now tell us.

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

My Lords, I begin by apologising to the House, and to the noble Baroness, Lady McIntosh, for not having been in my seat when she moved the amendment. I can attribute that only to my oversight, and to a disappearing group of amendments.

We addressed this matter in Committee. As has often been said during the passage of the Bill, it is intended to create a snapshot of EU law as it applies in the United Kingdom immediately before exit day, and then to retain it in our domestic law following our departure. That has always been the necessary mechanism. It is crucial that this snapshot is taken accurately and with certainty, to ensure that, as far as possible, the law we have before exit will be the same as the law after exit. This is not merely a dry technical or legal point. It is fundamentally important to people, businesses and other organisations throughout the country that we should have that degree of certainty.

Keeping that in mind, I turn first to Amendment 8 and the questions that have been raised in that context. Unlike other EU law such as regulations, decisions, and tertiary legislation, EU directives are not intended to form a part of a member state’s domestic law. Instead they require member states to bring forward their own national measures within a certain period of time, in order to implement their intended effect domestically. It is these domestic measures which are part of our law, and will be saved under Clause 2.

Questions have been raised about a series of directives that have been adopted, which have been helpfully listed by the noble Baroness, Lady McIntosh. The noble Baroness, Lady Smith, suggested that there was an anomaly in the situation when directives had been adopted at EU level but not implemented. However, with respect, where they have been adopted, so be it. Where they have been implemented we have a different scenario: they form part of our domestic law.

There are two developments that I wish to mention, because they impact on the amendment and the questions that have been raised in this context. First, the Government have reached agreement with the EU—subject to everything having to be agreed before anything is agreed—regarding an implementation period that will begin on 30 March 2019 and last until 31 December 2020. It is proposed and agreed that for the implementation period the United Kingdom will continue to follow and implement EU law, and that the existing EU mechanisms for supervision and enforcement will continue to apply. The proposed final agreement with the European Union will include the implementation period and its domestic effect. As the noble Baroness, Lady Smith, anticipated, that will be provided for by the withdrawal agreement and implementation Bill. That has an impact on the series of directives to which the noble Baroness, Lady McIntosh, refers in her Amendment 8. Before I turn to those directives, I should observe that at least two of them are directives in respect of which we have opted out; in other words, as member states can do, they can secure an opt-out from a directive and it is never implemented in their national law, nor is it intended that it should be so implemented. Those directives in the noble Baroness’s amendment are: at paragraph (d), the legal aid (suspects, accused persons and those under European arrest warrant proceedings) directive; and, at paragraph (g), the safeguards for child suspects in criminal proceedings directive. In respect of those, there is already an opt-out in place; it was never intended that we would opt in and implement those directives—that is simply the position at the present time.

On the remaining directives listed in the amendment, there is a confusing reference to the websites and mobile applications directive, which I believe should be a reference to a 2016 directive. However, putting that to one side, I can say that all but two, or possibly three, of these directives will be implemented during the implementation period running up to 31 December 2020. That will be provided for by the withdrawal and implementation Bill, which is the instrument that will be employed for that purpose. Those directives will be addressed. There are exceptions. There are instances, for example, in which a directive can have a divided implementation period, where it may be only partially implemented before the final implementation period date of 31 December 2020. Essentially, we must come back to the fundamental requirement for an identifiable point at which we have ring-fenced and identified retained EU law. That is subject to what will go into a withdrawal and implementation Bill in the event of the implementation period agreement being implemented. That will cover all such legislation.

Amendment 32, also tabled by the noble Baroness, Lady McIntosh, would amend Clause 7 so that it would extend the correcting power of Ministers to include legislation arising after the snapshot had been taken. As set out before, Clause 3 seeks to convert direct EU legislation—regulations, decisions and tertiary legislation—as it applies in the UK immediately before our exit from the EU into our domestic statute book. This provision is a reflection of the snapshot approach taken by the Bill and is to ensure that our law stays as similar as possible following our departure to what it was immediately before our exit.

While most direct EU legislation will apply shortly after it is adopted, certain provisions within the legislation may be stated to apply in a staggered way on different dates. If the date falls after our exit from the EU, these provisions will not be retained by the Bill in our domestic law. That cut-off provides the necessary clarity for individuals and businesses to understand what the law is both pre and post the exit date.

Instead of seeking to change this clear cut-off point, the noble Baroness’s amendment would amend how such staggered implementation within direct EU legislation may be treated for the purposes of the correcting power within Clause 7. As will be discussed in much greater detail on later days, the power contained in Clause 7 is designed to correct the “deficiencies” arising within retained EU law as a result of our withdrawal from the EU, thereby helping us to provide a functioning statute book from day one. As I understand it, the noble Baroness’s intention in tabling Amendment 32 was to widen the definition of “deficiency” to include the provisions within direct EU legislation which are stated to apply after our exit from the EU, thereby giving Ministers the ability to use Clause 7 to bring them into our domestic law. That is currently prohibited by Clause 7(4).

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Moved by

[Baroness Hayter of Kentish Town]

11: After Clause 3, insert the following new Clause—
“Enhanced protection for certain areas of EU law
(1) Following the day on which this Act is passed, a Minister of the Crown may not amend, repeal or revoke retained EU law relating to—(a) employment entitlements, rights and protection,(b) equality entitlements, rights and protection,(c) health and safety entitlements, rights and protection,(d) consumer standards, or(e) environmental standards and protection,except by primary legislation, or by subordinate legislation made under any Act of Parliament insofar as this subordinate legislation meets the requirements in subsections (2) to (5).(2) Subordinate legislation which amends, repeals or revokes retained EU law in the areas set out in subsection (1) must be subject to an enhanced scrutiny procedure, to be established by regulations made by the Secretary of State.(3) Regulations under subsection (2) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.(4) The enhanced scrutiny procedure provided for by subsection (2) must include a period of consultation with relevant stakeholders.(5) When making regulations relating to the areas of retained EU law set out in subsection (1), whether under this Act or any other Act of Parliament, a Minister of the Crown must—(a) produce an explanatory statement under paragraph 22 of Schedule 7, and(b) include a certification that the regulation does no more than make technical changes to retained EU law in order for it to work following exit.”

[Baroness Hayter of Kentish Town]

My Lords, I hope that perhaps we might get some more concessions like that one. No? I thought it might be one of those nice little things.

As noble Lords will see, Amendment 11 has support from across the House. It would basically ensure that there can be no reduction in the laws we are bringing over into domestic law under the Bill without primary legislation. This amendment should, of course, have included the words “human rights” which appear in the Marshalled List in Amendment 11A, so elegantly suggested in that amendment by the noble Lord, Lord Low. I may need some help here; I was going to say mea culpa for not having put the words in, but I do not know what the plural of mea culpa is. No Latin comes to mind. However, I express our apologies, because clearly the same arguments apply here to human rights as they do to the other rights: the things that we are bringing over and transposing on Brexit date should not then be vulnerable to subsequent change by secondary legislation. That is clearly as true in the field of human rights as for the other rights we have mentioned.

In getting on for half a century in the EU, we have seen great improvements in the quality of our environment—those clean beaches, rivers and air—and in consumers’ and workers’ protection. Some of these improvements, particularly on the environment and consumer protection, require international action—but some are there to ensure a level playing field for industry. They are driven by fair competition objectives, although they happen also to benefit workers and consumers.

Hitherto, all the areas covered by Amendment 11 —employment, equality, health and safety, consumer protection and the environment—have been safeguarded, or ring-fenced if you like, thanks to EU membership requirements. We now need to bubble-wrap those protections for what we bring into our law to safeguard them from meddling hands—because, without any protection, those standards could be weakened by secondary legislation. That could happen without consultation with stakeholders and even without a Bill going through Parliament, where MPs and Peers could interrogate the rationale, cost and benefit of any change.

I hope that no Government would ever want to sweep away such protections. We heard earlier about the importance of manifestos and the 2017 Conservative manifesto promised not to change the protections. It said:

“Workers’ rights conferred on British citizens from our membership of the EU will remain”.


However, there are other parts of the Government who appear a bit more deregulation-obsessed. Liam Fox has said that protections make it “too difficult” to fire staff, and that:

“Political objections must be overridden”,


to deregulate the labour market. Michael Gove boasted at one point that the Government,

“now have the potential to … if necessary rescind”,

employment protections. Boris Johnson has described EU workers’ rights as “back-breaking”. Others have contemplated scrapping the working time directive, the agency workers’ directive and the pregnant workers’ directive or even tearing up the precautionary principle under which traders have to prove that something is safe before it is sold—which is of course a key consumer protection.

The demands to deregulate do not emanate from industrialists or employers. We have had representations from architects, scientists, designers, insurers and testers, the CBI and the British Chamber of Commerce. The very businesses which operate EU rules at the moment, which want us to stay in the customs union, are all also content to keep those regulations.

Furthermore, there is widespread support for EU- derived consumer, employment and environmental protection, with only minimal appetite for deregulation among the public. Three-quarters of the public want us to retain the working time directive and two-thirds want us to keep vehicle emissions rules. An Opinium survey found,

“little to no appetite ... for reducing or removing EU standards”.

The figure was the same for remain as for leave voters. Trade unions warn against giving Ministers,

“wide-ranging powers to repeal, dilute or limit hard-won employment rights”,

regulations and standards, without such changes being made through an Act of Parliament.

The British Medical Association, along with 12 royal colleges and unions, wrote to the Prime Minister calling on her to stand firm against Brexiteers who want to scrap European laws and warning of the risk to patient safety since, in their words,

“fatigue, caused by excessive overwork, remains an occupational hazard for many”,

NHS staff. The Royal College of Nursing warns that,

“removing or weakening working time regulations would put patients at serious risk”.

Such protections are not just good in themselves; they matter for trade. Indeed, non-tariff barriers are a bigger hurdle for trade than customs duties, so even if the Government were not worried about patient safety, workers’ rights or consumers—although I am sure they are—they might listen to industry, on whose success our economy depends.

The British Chambers of Commerce stresses the importance of businesses getting their goods across borders as quickly as possible and calls for a pragmatic agreement between the UK and the EU that ensures that businesses face only one set of regulatory approvals to sell their goods across borders. Dairy UK, the NFU and 35 others signed a joint letter stressing that a successful Brexit for the food sector must involve free and frictionless trade, and that means keeping the same rules with no diminution of standards. The Urology Trade Association is just one of many trade bodies that came to see us. It wants the Government to ensure regulatory continuity, since any divergence could lead to changes in licensing arrangements and an increase in bureaucracy, which would reduce competitiveness and market penetration.

Our EU partners are already talking of a no-regression undertaking to promote fair competition and a level playing field, but also to reduce the checks and assurances that have to take place when rules diverge. Maintaining the standards that we are incorporating into UK law is supported by business, requested by the EU, demanded by environmentalists, strongly demanded by trade unionists, whose working days are affected day in, day out by these protections, and promised by the Prime Minister—so what is not to agree to? The Prime Minister said:

“This Government has committed not to roll back workers’ rights”,


and that,

“it would be for Parliament or the devolved Assemblies to decide on future employment law”.

We are merely seeking to put her words into legislation. I beg to move.

Amendment 11A (to Amendment 11) not moved.

--- Later in debate ---

[Lord Callanan]

No, I do not think they are mutually exclusive. I think the amendments can both stand.

[Baroness Hayter of Kentish Town]

I thank the Minister for his clear answer today. I wish the amendments he drafted were equally clear—I have had three very good lawyers sit and explain them to me. I have to say that they do not do what he says. There is not a hierarchy in status between EU regulations and EU directives, and the extra protection he has put in will not affect the directives. There are particular directives, such as the ambient air quality directive, the habitats directive and the working time directive, that are not covered by the government amendments. There is enhanced scrutiny for stuff coming over now, but for the future it does not cover those really important directives. I have had three different lawyers look carefully at his wording and, believe me, all three tell me that it does not meet the promise of the Prime Minister.

The Prime Minister said that we will bring over everything, but after that it will be for Parliament—not a statutory instrument but Parliament or the devolved Assemblies—to decide whether there is any change to working time law. The same is true for the environment. It is, I am afraid, not good enough to leave this to secondary legislation. We need to make sure that these really important provisions are safeguarded and that only primary legislation can amend them. I wish to test the opinion of the House.

Brexit: Transition Period

Baroness Hayter of Kentish Town Excerpts

Monday 16th April 2018 Lords Chamber

[Lord Callanan]

We set out in the agreement that we reached with the EU how we see the implementation period working, which is pretty much to maintain the existing arrangements in place to provide certainty for businesses.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I would like to talk about the transition period. We now understand that we are coming out of all the agencies in March, so we will be out of the European Medicines Agency in March. What is the attitude of the pharmaceutical industry to that decision?

[Lord Callanan]

The noble Baroness makes a good point. We are continuing the discussions with the EU to see what the precise formulation of our involvement in the various agencies will be. We are clear that we want to remain involved and participate in the work of those agencies, which are so essential for many businesses in the UK, but we are currently discussing how precisely that will work during the implementation period.

Brexit: British Citizens

Baroness Hayter of Kentish Town Excerpts

Thursday 29th March 2018 Lords Chamber

[Lord Callanan]

I thank my noble friend for his comments, but let us see how Report goes before we get the congratulations in too early. Yes, Emily Thornberry’s comments yesterday were interesting, as were Keir Starmer’s at the weekend when he said:

“I don’t think there is any realistic prospect of”,


Article 50 “being revoked”. On the referendum, he said:

“Having asked the electorate for a view by way of the referendum, we have to respect the result”.


I never thought I would hear myself say it, but on this occasion I agree with the Labour Party.

[Baroness Hayter of Kentish Town (Lab)]

I am glad the Minister agrees with the Labour Party. Will he also agree that the six tests that we have set should be met? This must be a Brexit for jobs, for people, for all regions of the country and for all parts of the country. That is what we want the Government to seek. Will he agree to meet those tests?

[Lord Callanan]

It depends on what the Labour Party’s policy is for this week, but if the six tests are the policy for this week, of course we will try to reach a Brexit deal that works for everyone, is good for jobs, for British industry and for people, and respects the result of the referendum.

Brexit: Immigration

Baroness Hayter of Kentish Town Excerpts

Thursday 29th March 2018 Lords Chamber

[Lord Callanan]

We have been very clear that free movement will end at the end of the implementation period. Having said that, in our negotiations with the EU we are committed to seeing how we can smooth the flow of people in the future. However, we are very clear that one message from the referendum was that we need to take back control of immigration and deliver that for the people.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, first, I hope that this is the last time that I will have to be here before the break, and I wish everyone a happy Easter. The Greek Easter will be a week later—pungent bitter herbs for those who are about to commemorate Passover. I understand that there is now to be a further delay to the immigration Bill. Would it not have been a very good idea if, before fixing the exit date, the Government had decided what sort of role there would be for EU citizens after leaving? Will they come into this country in the same way as Commonwealth citizens or American citizens, or in some other way? We are now facing leaving without any idea of what our future Immigration Rules will be. Is it not time that we moved on that?

[Lord Callanan]

I thank the noble Baroness for her Easter good wishes. I think that I will spend my Easter studying amendments to the withdrawal Bill; nevertheless, I hope that we all get some time off. Yesterday the Home Secretary said that we expect to publish a White Paper on a future immigration system before the end of the year in order for consultations to go forward. Legislation will follow that but we have already provided certainty for what will happen during the implementation period up to the end of 2020.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

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

[Lord Elystan-Morgan (CB)]

My Lords, I respectfully agree with the sentiments articulated by the noble Lord. In relation to Wales, a totally new attitude has been taken toward reservations. The noble Lord, Lord Tyler, suggested that reservations were somewhat limited on the whole in devolution legislation. That is not so; in the Wales Act there are 197 separate reservations, believe it or not. Some are massive; some apply to sovereign powers that should belong to the mother Parliament; others are very trivial. For example, dangerous dogs, sharp knives and axes, prostitution and half a dozen similar situations are included. Why they were ever included in that context I know not, but there they are. Therefore, the area that has been reserved regarding Wales is massive and comprehensive.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I rise only to make it clear that the unanimity comes also from the Front Bench. My noble friend Lord Morgan may not be on the Front Bench but on this occasion we are absolutely as one with him.

It would perhaps be helpful if the Minister feeds back what he has heard from the devolved Administrations in his discussions with them on these amendments.

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, I thank noble Lords who participated in the discussion on these amendments. In opening, let me say that I fully understand the absence of my noble friend Lord Blencathra. I am very grateful for his careful consideration of the Bill and that of the Delegated Powers and Regulatory Reform Committee, which he chairs.

I apologise to the noble Lord, Lord Tyler. I knew that my noble friend Lord Blencathra was not going to be here and I tried in vain to find out who would be his substitute so that I could have had a word with them earlier. However, I am very happy to meet the noble Lord afterwards at any convenient juncture to discuss this. In fact, I had heard at a previous stage that the substitute would be the noble Lord, Lord Thomas of Gresford, so I encourage him to ignore the several messages he has received from me.

I will respond first to the general points made and then pick up some of the specifics. I want to make it clear that the amendment that the Government have tabled to change how the Bill deals with devolved competence would, as part of that change, remove the Order in Council procedure from Clause 11 and Schedule 3. In the light of this, my noble friend’s amendments would no longer be necessary on that specific point. However, I will address the substantive point that my noble friend Lord Blencathra sought to make, and which has been made by the noble Lord, Lord Tyler, in his stead, on the modification of the devolution statutes—namely, the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006—by secondary legislation.

I understand the point made by the noble Lord, Lord Tyler: that the Order in Council powers contained in Clause 11 and Schedule 3 are unsatisfactory substitutes of those contained in Section 30 of the Scotland Act and Section 109 of the Government of Wales Act. I accept that there is merit in my noble friend’s argument that there may be a difference in the function of these powers and that we may wish to consider the need for a different procedure. As I said, I am very happy to discuss that point with my noble friend Lord Blencathra, the noble Lord, Lord Tyler, and others.

I do not agree that it necessarily follows that secondary legislation can never be used to modify devolved competence or the devolution statutes more widely, and that this should only ever be achieved through primary legislation. For example, we used the procedure in 2013 to amend the Scotland Act 1998, and we used an order in 2007 to amend the Government of Wales Act 2006. There are previous examples and, more recently, we saw the Treaty of Lisbon (Changes in Terminology) Order made under Section 2(2) of the European Communities Act. It has sometimes been a convenient way to proceed, by consent of the devolved Administrations.

I am grateful to the noble Baroness, Lady Hayter, for raising the point that she did. We have been discussing these issues with the devolved Administrations and continue to do so in a perfectly constructive way. I have to say that there is no agreement yet, but we are looking at how this should be used going forward.

I will pick up some of the particular points made. I appreciate that the noble Lord, Lord Tyler, was making general points, but, as I say, the specific issue mentioned will not arise in the light of the amendments we have put down. However, I appreciate that it was, as he said, the unanimous view of the Delegated Powers and Regulatory Reform Committee. I thank the committee for its third report and constructive and dispassionate work on these issues. I served on that committee for a time and I know it looks at these issues constructively.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I will pick up what the noble Lord, Lord Kerr of Kinlochard, has just said. The criteria set out in this amendment—and in one tabled by the noble Lord, Lord Griffiths of Burry Port, to which the noble Lord and I both put our names but which was not moved—reflect a set of principles for common UK frameworks agreed at a Joint Ministerial Committee on EU Negotiations last October. They are certainly a basis for moving forward and already have a buy-in from the United Kingdom Government and the devolved Administrations in Scotland and Wales.

When creating United Kingdom frameworks, we do not want to find a situation where, when we come out of the European Union, there is something which impedes a Scottish beef producer freely selling their beef in Wales or a Welsh sheep producer selling lamb in Belfast. These benefits predate our entry into the European Common Market. It is also important to remind ourselves that the restrictions on the Scottish Parliament relate not only to reserved matters or EU law, but to what is in Schedule 4 to the Scotland Act. That specifically constrains the Scottish Parliament from doing anything which modifies Articles IV and VI of the Union with Scotland Act 1706 and the Union with England Act 1707. If one reads these two articles of the Acts of Union, drafted 280 years before the Cockfield report, one finds not a bad model, in the language of its time, for a customs union and a single market which have served us well over three centuries.

I also note that as well as the criteria that have been agreed, the Scottish Government themselves, in their legislative consent memorandum to the Scottish Parliament in September last year, said at paragraph 19:

“The Scottish Government has made clear, repeatedly, its willingness to negotiate UK frameworks in certain areas previously covered by EU law. This could be, for example, to support the functioning of UK markets, or to facilitate the management of common environmental resources”.


Therefore, I believe there is a basis for reaching agreements here, but it is important that these are not imposed.

In giving evidence to the Scottish Affairs Committee in the other place last year, the Secretary of State for Scotland, Mr Mundell, stated at paragraph 21 of that committee’s first report of Session 2017-19:

“The Secretary of State for Scotland agreed that any common frameworks should be agreed with the devolved administrations, stating:


A UK framework is not a framework that the UK Government imposes; it is a framework that is agreed across the United Kingdom”.


It is important that we approach this issue with that in mind. That is why I think the amendment suggested and spoken to by the noble and learned Lord, Lord Mackay, is helpful. Indeed, that Select Committee went on to recommend that:

“Any common framework must require the consent of the governments of Scotland, Wales and Northern Ireland, where relevant”.


It is important to have a dispute resolution mechanism, as referred to by the noble Baroness, Lady Finlay of Llandaff, because there is potential for some disagreement in setting up these frameworks—I hope not as much as is sometimes thought—for which a dispute resolution mechanism is required. One assumes that once these frameworks are established—that goes beyond the ambit of this Bill—they will not be static but will develop. It might be useful at some stage—not in this debate or in this Bill—to get an indication from the United Kingdom Government as to how they see these frameworks working after they have been established. Do they want to see common standards apply across the United Kingdom, but have diversity within that as to how they are implemented in Scotland, Wales and Northern Ireland, or in England through the United Kingdom Parliament? That too will require some form of dispute resolution mechanism. The Select Committee, to which I have referred, recommends that,

“the UK Government and the devolved administrations agree a mechanism by which disputes can be resolved in the event that common frameworks cannot be agreed”.

I think that that is a two-stage process. First, there is the establishment of the common frameworks, where the amendment of the noble and learned Lord, Lord Mackay, is very pertinent, and, as we move forward, there is the issue of how we look at the operation of the common frameworks, which I believe will also need some form of dispute resolution mechanism. However, it is important that we move forward with the common frameworks. The amendment in the name of the noble and learned Lord, Lord Hope of Craighead, certainly reflects agreements that have already been reached between the United Kingdom Government and the devolved Administrations.

[Baroness Hayter of Kentish Town]

My Lords, I wish to add a couple of points. First, are discussions progressing on the possible inclusion in the Bill of a schedule detailing these areas of concern? Secondly, the noble and learned Lord, Lord Wallace of Tankerness, said that a solution should be agreed, not imposed. We should heed those words. I again ask the Minister: as regards reaching agreement on these issues, to what extent does he have in mind involving the legislatures rather than just the devolved Governments?

The Minister has had notice of my next point. I would like to correct something that the noble and learned Lord, Lord Keen, said in the House last week. He said that there were,

“about 153 areas in which, upon our leaving the EU, competences will return and touch upon areas of devolved competence. These are areas that the devolved parliaments and assemblies previously had no engagement with because they lay in Brussels”.—[Official Report, 21/3/18; col. 334.]

I have since written to him because that it not completely the case. As it works, the memorandum of understanding provides that, in matters of devolved competence, the UK Government consult the devolved Administrations to agree a common UK position on matters before the Council of Ministers, and then defend that position in the Council. Indeed, as we just heard, occasionally devolved Ministers will do that and represent the UK. However, whether it is a UK Minister or a devolved Minister there, they speak in this case for an agreed UK position, not just a UK government position. It may therefore be helpful if the Minister confirms that understanding, which is undoubtedly how the devolved Governments see it. What has been said is right: the spirit to reach accord is there. However, perhaps for clarity, it would be good if that could be confirmed.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

Perhaps noble Lords will forgive me for a moment or two while I stretch my back, which is just a little bit tight. Now I am fighting fit. I point out to the noble Lord, Lord Adonis, that it is because I am carrying the heavy weight of Brexit on my shoulders.

I thank the noble and learned Lord, Lord Hope, for bringing forward this amendment, and all noble Lords who have introduced some interesting debate into the discussions today. It will be useful for us to begin by looking at the deep-dive process itself, whereby the devolved Administrations together with the UK Government have pored over the various 150 or so areas to which my noble and learned friend Lord Keen referred. They have been guided, as the noble and learned Lord, Lord Wallace, noted, by a suite of agreed principles, which indeed from time to time make reference to such concepts as the UK market itself, trade and various other obligations. I understand that each of your Lordships should have had in their postbox or email in-tray a series of emails from my noble friend Lord Bourne which set out the principles themselves and the areas in which they intersect with the policy matters.

It may be useful if I give a flavour of that. It struck me, as I was discussing with various officials in my department and others, that we have perhaps not done that before to give your Lordships a sense of the sheer scale and magnitude of the engagement thus far undertaken. There is a certain sense sometimes that we are quite dismissive of the devolved Administrations, when nothing could be further from the truth. To give your Lordships just a flavour of that, in the area of fisheries there have been six full days of discussions between the devolved Administrations and the UK Government—17, 18, 23 and 24 January, and 6 and 7 February. On environmental quality, to take another example, there was a whole-day discussion on ozone-depleting substances and fluorine gases on 31 January, and two full days at the end of January were spent examining chemicals and pesticides. It is useful to recognise that this approach is unprecedented. Its purpose is, again, one of respect. I can see that the noble and learned Lord, Lord Wallace, is ready to jump up. He is welcome to do so—it will give me a chance to sit down.

--- Later in debate ---

Moved by

[Baroness Hayter of Kentish Town]

334: Clause 14, page 10, line 40, leave out from “means” to end of line 41 and insert “such day as a Minister of the Crown may by regulations appoint (and see subsection (2));”

[Baroness Hayter of Kentish Town]

My Lords, it is worth the wait. We need to be clear that these amendments—which return to the Bill its original flexibility over exit day—are not about overturning the decision to leave. They are about removing the straitjacket the Government inserted at the behest of some ardent Brexiteers more anxious to earn their spurs than help the Government in their delicate negotiations. Importantly, the amendments enable the Bill to fulfil the task set for it: to provide a functioning statute book and legal certainty as we withdraw from the EU.

A fixed, immutable date undermines this, which even the Government acknowledge as the Bill contains a get-out in Clause 14(4)(a). The two drawbacks of the fixed date are: first, it undermines the transition period, which is rather vital for our departure; and secondly, it undermines the Government’s negotiating strength. Indeed, it appears to make it illegal, without the use of Clause 14(4) for the UK to extend the Article 50 negotiations period by even a single minute—even if the EU 27 unanimously agreed to do so, and even if it were in our country’s best interests.

With regard to the transition, assuming it will be on current terms, the ECJ would continue to have some hold under those. Therefore, triggering Clause 6(1) to end its jurisdiction on 28 March next year is a nonsense. This needs to be delayed until the end, not the beginning of the transition phase, or, in the case of EU citizens, whom we have promised can access it for eight years, a later date, as may also be needed for our continued participation in Euratom or other agencies.

Turning to the negotiations, as our EU Committee says:

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

[Lord Adonis]

My Lords, does my noble friend not agree that it is a question not just of rigidity but of parliamentary sovereignty that Parliament should not agree the date of withdrawal until we see the withdrawal treaty? The flexibility to which she refers in Clause 14(4) is flexibility only at the behest of the Government because they have to move an amendment to the date, whereas it should be Parliament in the driving seat. Parliament should not agree a Brexit date until we see and have approved the withdrawal treaty.

[Baroness Hayter of Kentish Town]

I think that that is what the amendments seek to achieve and, as this House has said again and again, the whole idea was meant to be to bring back decision-making to Parliament.

[Viscount Hailsham (Con)]

The noble Lord, Lord Adonis, is right about this, because the noble Baroness’s amendment would give power to Ministers by regulation to extend or vary the exit date. What the noble Lord, Lord Adonis, is saying, and what I must say I agree with, is that the power should be in the hands of Parliament and that Back Benchers should have the opportunity to trigger the process.

[Baroness Hayter of Kentish Town]

There is a series of amendments in the group, and I hope that when we get to Report we will have one that does exactly what is clearly felt will be needed. The importance of our amendment is to get rid of this absolute fixed date that is there at the moment—and not in the original Bill. It was introduced in one of the few amendments made in the Commons, not for the national interest but for a slightly more partisan reason.

Article 50 provides:

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


unless, of course, the 27 agree to extend the period. Thus the UK would not automatically leave after two years if, for example, the final deal had not yet come into force.

It could be that that itself sets a later date; it could be because the European Parliament had vetoed the deal in January. What would happen in that eventuality? I think it unlikely, but the Government always tell us that we must be prepared for any eventuality, and we should be prepared for that, given the red lines that the European Parliament has been setting down. Guy Verhofstadt told Andrew Marr on television that it meant that, if it did veto the deal, we would leave with no deal—in other words, as we have all said a number of times, trading on WTO terms, with no transition and no safeguards for citizens.

I doubt very much that, should the European Parliament decide that it did not want to agree with the deal, the Governments of the 27, let alone the Government of the 28th, would simply settle for that and say, “We give in—come out on WTO terms, with no concern for EU citizens”. My guess is that there would be rapid and rather complicated negotiations, which is particularly important given that in January next year we know jolly well that when it comes to our customs at Dover, our procedures for registering EU nationals, new VAT forms, agreements on aviation and the export of live animals, and checks on foodstuffs and all manufactured goods, none will be ready by the time of March next year—let alone the situation in Northern Ireland being resolved.

So undoubtedly at that stage, if the European Parliament did vote it down, we would definitely need a period of breathing and talk to get things back on track. If just another week or two would make a difference, surely that should be possible without having to live with the date written into the Act. What could also happen, even without the European Parliament, is that discussions could be going on and agreement could be very close—just days away—and we surely would not want the Act to stop those discussions taking place. Setting that date in stone must be unhelpful to say the least.

The Government think that they can agree the substance of our future partnership with the EU before October this year, but the report from the other House from the exit committee said that,

“it is difficult to see how it will be possible to negotiate a full, bespoke trade and market access agreement, along with … other agreements, including on foreign affairs and defence”,

by October. It suggested that,

“the Government should seek a limited extension to the Article 50 time to ensure that a Political Declaration on the Future Partnership that is sufficiently detailed and comprehensive can be concluded”,

before we enter the transition period. The same report states:

“If a 21-month transition … period is insufficient time to conclude and ratify the treaties/agreements that will establish the Future Partnership or to implement the … technical and administrative measures along with any … infrastructure at the UK border, the only prudent action would be for the Government to seek a limited prolongation to avoid unnecessary disruption”,


and that the withdrawal agreement should therefore,

“allow for the extension of the transition … period … with the approval of Parliament”.

We can do that only if the date is in our hands and not fixed in the Bill.

The noble Lord, Lord Kerr, who is not in his place, has said that saddling yourself with deadlines is crazy. Had he been here, I would have said that it was not as crazy as writing Article 50 itself—but, as he is not here, I clearly would not say that. The date was put in the Bill to satisfy some Back Benchers who had no involvement with these detailed talks or with the task of implementing the final deal. So let us get it out of the Bill now, untie the Government’s hands and give them a better chance of negotiating a satisfactory way of extraditing ourselves from what is otherwise, I fear, a looming nightmare. I beg to move.

--- Later in debate ---

[Baroness Goldie]

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

[Baroness Hayter of Kentish Town]

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

“if Parliament”—

that is, the European Parliament—

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

That is quite a serious thing to be reminded of.

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

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

[Lord Wallace of Saltaire]

I reinforce what the noble Baroness has said. We may well face a legislative logjam in both Houses in the autumn of this year. Given the number of Bills that are waiting to come into this House and the possible complexity of an implementation Bill, one of the problems we may face is a simple lack of parliamentary time. Perhaps the Leader of the House might, at some point in the near future, give a preliminary statement on how she thinks we will manage the number of Bills on which we still have to provide scrutiny.

[Baroness Hayter of Kentish Town]

I am grateful to the noble Lord. I am not sure whether the back of the noble Lord, Lord Duncan, or my voice will give up first if we have to deal with all those Bills and we are here all night. We will take money on that one, I think—but there is a real problem there.

The noble Lord, Lord Tugendhat, who I think knows more about negotiating than some people, said that we need to be able to secure the best deal we possibly can and that putting a gun at one’s head puts us at a disadvantage. I am sure no one wants to do that. Others used different language. The noble Lord, Lord Bowness, said that we must remove this self-imposed fetter and that if we can get the date off the Bill the Government will have the flexibility that they say they want.

I wish to make two other points. First, on the issue raised by the noble Lord, Lord Lamont, that we should not worry about this because Ministers could change the date if it proved necessary, at that stage it would be obvious all round Europe that we had had to do it, which does not look like strengthening our hand. Technically, of course, he is correct, but I am not sure it would be the best way forward in PR terms.

The Minister said that fixing the date provides elasticity in negotiations. I do not understand how that would work. To fix a date would take elasticity away. I am also not persuaded by her view that it could not be put into the second Bill, as the noble Lord, Lord Hannay, said. The words “exit day” could be in this Bill, but the specific date could be put in once we know what the withdrawal deal is. We will also know how many hurdles we have to get over and how much extra legislation we might need. I do not think that I am the only one who is not persuaded but, for the moment, I beg leave to withdraw the amendment.

Amendment 334 withdrawn.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

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

[Lord Hannay of Chiswick (CB)]

My Lords, I am in favour of the amendment. I shall also add a bit of history that has not been mentioned so far. This time last year we were considering the Article 50 triggering Bill. An amendment was moved by a number of us that was designed both to produce a meaningful process for the end of the negotiations and to include within it the circumstances in which there was no deal. That amendment was passed by a very large majority in this House. It was sent to the other place where it was rejected in a pretty perfunctory way by, of course, the Parliament that was sitting before the general election, and in which the Conservative Party had an overall majority. So it is no good saying the Government are not opposed to a parliamentary statutory decision-making process if there is no deal. They are opposed to it; they opposed it only a year ago. So if this amendment is being brought forward now, it is because the Government have form on this matter.

I would like the Government to recognise that, having lost the vote on the meaningful process in the other place to Mr Dominic Grieve’s excellent amendment, it is more sensible to accept the statutory process for dealing with any outcome to the negotiations, whether that be a deal or no deal or whether it is the case, as I rather suspect now, that the Government have stood their mantra on its head and are now saying a bad deal is better than no deal. But whichever way we look at it, let us be quite sure that Parliament has its say. That is why I support the amendment.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I think the noble Lord, Lord Jay, was a little modest, because it was he who was chairing the European Union Committee at the time when it produced its excellent analysis of what it would mean for there to be no deal and for us to leave on WTO terms. We would have to rapidly set up customs posts around our market. Indeed, as he said, it would also mean no protection or continuation of residence, work or health rights for UK citizens living in the EU or, indeed, for EU citizens resident here. In the latter case, of course, we could pass domestic legislation to safeguard their position but we could not do the same to help UK nationals abroad because no deal would also mean no transition period.

I am sure that for business, as the noble Baroness, Lady Wheatcroft, has just spelled out, that would be a catastrophic outcome. It would mean that in addition to what it would mean for their order books—a rush to set up customs, VAT and all the other stuff that goes with that—I maintain that it would entail a jolt to our economy that would make 2008 look like a kiddies’ party. So a decision to depart from the EU in those circumstances is one to be taken by Parliament, not by the Prime Minister nor even by her Cabinet. The amendment is aimed to ensure that any such decision—coming out without a deal—would be made by Parliament, and bring the no deal scenario within the ambit of the amended Clause 9(1).

We accept that the Government are working very hard to ensure that we do not depart without a deal, and I trust that in those circumstances, they will accept the amendment.

[Viscount Waverley (CB)]

Does the noble Baroness share a concern regarding UK citizens on the continent? She mentions transition. Does she recognise that there may be a problem for Parliament? The Dutch Government have appealed against a ruling by a Dutch court on 7 February to refer a case regarding a UK citizen to the ECJ. The ECJ agreed to take the case, the Dutch Government then appealed and the ECJ is waiting for confirmation whether it will be put back to them. The problem is that if the ECJ takes its fast-track route on adjudication, it will be a four-month process; if it takes the normal time for the ECJ to consider the issue, it will be 15 months, which potentially plays havoc with the issue of UK and EU citizens and their acquired rights within the European Union. Does she recognise that problem?

[Baroness Hayter of Kentish Town]

My Lords, I absolutely recognise that. There are a number of issues which we hope will be part of the agreement. In business, there are what are called goods already on the market, which I believe the transition agreement will cover. There is the arrest warrant. A number of countries forbid any of their nationals being extradited to a non-EU member state, so we could find that if someone who commits murder here hops off to a member state, unless we have this all agreed in the transition deal, they would be free. I understand that the negotiations will say that where a case has started on its track towards the ECJ, let it finish.

There is a raft of things where, if we come out with a bump in the night, and wake up on 30 March with no deal, it will not just be a fall from the bed, it will be a substantial disadvantage. That is why I am confident that we will have a deal, but therefore I am confident that the Minister will accept the amendment.

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

My Lords, I thank the noble Baroness for her contribution.

I have presumed for the purposes of this response that the amendments tabled by the noble Lord, Lord Jay, are intended to ensure that a statute, specifically that provided for in Clause 9(1), is required to approve a situation in which the UK fails to negotiate a deal with the EU.

With the greatest respect, the amendments do not achieve the desired outcome. The statute specified in Clause 9(1) is intrinsically linked to the exercise of the Clause 9 power, which is itself dependent on the existence of a withdrawal agreement. Therefore, in a no-deal scenario, the Clause 9 power and all provisions within it would be unavailable, because there would be no withdrawal agreement.

The amendments would also leave other areas of the Bill inoperable. For example, Clause 7(7)(d) sets out that the power cannot be used to implement the withdrawal agreement. Changing the definition of withdrawal agreement to include the absence of an agreement would therefore leave us unable to use Clause 7 in a no-deal scenario. Vital corrections could not be made in that case and we would be left with many inoperabilities on our statute book.

Of course, I remind the House that, as the noble Baroness, Lady Hayter, and others have said, we are confident that the UK and EU can reach a positive deal on our future partnership—

[Baroness Hayter of Kentish Town]

If the Minister is saying that the amendment does not technically achieve what they want, if we can word it in a way that they want, will the Government then accept it?

[Lord Callanan]

I cannot give the noble Baroness that commitment. I am explaining the amendment and will come to the other implications in a second.

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[Baroness Hayter of Kentish Town]

Article 50 also says that there will be a withdrawal deal which will include the framework for our future arrangements. Article 50, which we triggered, does not say that we are giving notice that we are leaving and that we are leaving without a deal.

[Lord Callanan]

We are giving notice of our withdrawal. The title was in the Bill that we passed to trigger it. Keir Starmer also said:

“Having asked the electorate for a view by way of the referendum, we have to respect the result”.


I agree with him.

I say again only to remind noble Lords so that they can understand my point of view that there has been a legitimate process, marked at intervals by the consent of both Parliament and the electorate. As I said in an earlier debate, amendments that could be perceived as a means to delay or disregard the referendum result carry with them their own risks—people’s faith in their democracy and its institutions. With that in mind, I do not think that it would be right to add an express mechanism within this Bill which might prevent the referendum result being acted upon.

The Prime Minister has been very clear: we are leaving the EU at the end of March 2019. That is not a question of domestic legislation; it is now a question of the EU treaties. While the detail of our future relationship with the EU has yet to be negotiated, I believe that remaining in the EU is the only outcome which cannot be reconciled with the decision taken in the referendum. I do not think that it would be in the interests of either the EU or the UK to open the door to an ever-continuing negotiation process with no certainty that the UK will ever reach a new, settled relationship with the EU. I was going to finish there but I see that the noble Baroness, Lady Ludford, is itching to ask a question.

--- Later in debate ---

[Baroness Kramer (LD)]

My Lords, I shall add a very quick word because so much has already been said. There is an irony in Schedule 4 which may interest the Committee: namely that the power to provide for fees and charges has been handed to Ministers by means of either secondary or tertiary regulation, depending on which part of this measure you are looking at. Paragraph 3 of Schedule 4 states:

“A Minister of the Crown may only make regulations under paragraph 1 with the consent of the Treasury”.


The irony of that is, frankly, extraordinary because it shows where the Government intend the power of the land to lie. We have always suspected that the Treasury is handed some of the greatest powers that are denied to Parliament. If it is considered fit for the Treasury to be able to intervene in fees and charges, then surely it is Parliament’s right to be able to intervene, scrutinise and monitor those fees and charges.

[Baroness Hayter of Kentish Town]

My Lords, I do not think that the noble Lord, Lord Tyler, was threatening to cut the right reverend Prelate’s head off because of this. However, what may have been a threat to the Minister was to me a great delight: the promise of the noble and learned Lord, Lord Judge, that he will do this with knobs on when we come back on Report. I look forward to that.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Monday 19th March 2018 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

220: After Clause 9, insert the following new Clause—
“Maintenance of rights in the area of insolvency and restructuring law
(1) Within the period of six months of the passing of this Act, a Minister of the Crown must publish a report outlining the extent to which the benefits afforded by EU insolvency and restructuring law will continue to exist in domestic law after exit day.(2) The report provided for under subsection (1) must include—(a) the steps, if any, taken by Ministers of the Crown to negotiate the continuation of reciprocal arrangements between the United Kingdom and member States in the field of insolvency and restructuring law;(b) the nature and duration of these reciprocal arrangements, if such arrangements have been negotiated; and(c) a declaration from the Minister of the Crown outlining whether, in their view, the UK’s insolvency and restructuring framework has been weakened.(3) The Minister of the Crown must lay the report before both Houses of Parliament.”

[Baroness Hayter of Kentish Town (Lab)]

My Lords, Amendment 220 seeks to draw the Minister’s attention to what we risk losing if the Government fail to negotiate the reciprocal arrangements we currently have in place by virtue of the EU insolvency regulation and the recast Brussels regulation. They provide a speedy and efficient procedure that determines which member state has jurisdiction to open insolvency proceedings as well as ensuring appropriate recognition of proceedings within the Union. Of course, I am referring to our long-term relationship with the EU, not just the transition period. However, I welcome today’s progress in that, in particular the realistic replacement at last of implementation with transition. I am also grateful for article, clause or paragraph 63 in the report released today—I do not yet know which it is—because it provides for the regulations to continue to apply to insolvency proceedings where these commence before the end of the transition period, but that is not enough. We are looking to the future.

The current rules allow for judgments made in the UK to be enforced across other member states. This recognition, whether of appointments or judgments, is key to investors, pensioners, employees, consumers, creditors and businesses. Without the rules, a liquidator or receiver here could lose the ability to freeze and ultimately return to the UK assets that have been squirrelled away across the EU but which rightfully belong to the bankrupt firm’s creditors, be they the staff, consumers who have paid for yet undelivered goods, investors, a pension scheme, landlords or even our blessed HMRC.

The UK has a renowned insolvency regime with one of the highest rates of return to creditors in the world. It gives confidence to investors and traders that their money will not disappear offshore because it enables a receiver to rapidly get hold of that Lamborghini, hidden away in an Italian garage, houses in sunny European climes, bank accounts in Frankfurt or even paintings in Paris, if they are rightly due to creditors here.

There are many examples; I will not go into detail. The purpose of the amendment is to ensure that the Government prioritise this in negotiating our long-term relationship with the EU. The Minister is well aware of my concerns; I set them out last year in writing to the then Minister, the noble Baroness, Lady Anelay. She replied to me on 26 October last year, offering a meeting with the BEIS Minister, Margot James. However, I got a letter from Margot James on 9 January saying that she could not meet me, but Insolvency Service officials could. The problem is, I know that various bodies, such as R3 or the City of London Law Society, who feel that the Government are not taking this seriously enough, have met with the IS and feel that they are not getting traction in the Brexit negotiations. Hence, I would argue the need for a political meeting.

My ask today is a very easy one: will the Government agree to meet me and representatives from the field—perhaps the noble Baroness, Lady Burt, as well—so that we do not have to bring this back on Report but can make progress? I beg to move.

[Baroness Burt of Solihull (LD)]

My Lords, I support the amendment of the noble Baroness, Lady Hayter, from these Benches. I would very much appreciate it if such a meeting could be arranged; I would love to be included.

I want to emphasise the importance of the UK’s insolvency framework to British trade and investment, especially where cross-border insolvencies between the UK and EU are concerned. We need to ensure that the benefits of our existing arrangements can continue, post Brexit, and we need an agreement in place before we exit the EU. We have a strong insolvency framework in the UK, as the noble Baroness, Lady Hayter, mentioned, and some good reforms to corporate insolvency in the pipeline. They would make our rules fit for purpose for both domestic and international markets, as well as underpin the UK’s attractiveness as a place to do business by supporting trade, investment, lending, productivity and entrepreneurship.

Brexit risks creating barriers to resolving cross-border insolvencies between the UK and the EU. We cannot allow that to happen. We need to ensure automatic reciprocal recognition for insolvency judgments and appointments, post Brexit. Unfortunately, we have slipped down the World Bank rankings in resolving insolvency from 13th to 14th; frankly, now is the worst time to be heading in the wrong direction. Life will be tough enough, post Brexit, so let us not risk losing out on the international investment our robust insolvency framework currently attracts. The amendment’s reporting requirements would ensure that no one is allowed to take their eye off the ball.

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[Baroness Hayter of Kentish Town]

My Lords, I do not think that I have ever called the noble and learned Lord “not the appropriate individual”. Actually, that was a very appropriate and helpful response. I thank the noble Baronesses, Lady Kramer and Lady Burt, for their support. The Minister’s emphasis on it being in everyone’s interest that co-operation be maintained is the right way forward. Despite his warm words, a meeting with the relevant sponsoring department, BEIS, would nevertheless be of use. If he can set that up, I am more than content to withdraw the amendment.

Amendment 220 withdrawn.

--- Later in debate ---

[Baroness Altmann (Con)]

My Lords—

[Baroness Hayter of Kentish Town]

My Lords, I think the House wants the Minister to reply, so I was thinking that we are probably ready to end this debate.

I have just heard the first case against referendums, which is that a referendum made my country of Wales dry—and that argument was in support of them. It was certainly dry on a Sunday when I was growing up; and this is the ex-director of Alcohol Concern confessing this.

We have considerable sympathy with one part of these amendments: that the Government cannot be allowed to mark their own homework regarding the outcome of the withdrawal negotiations, be that on Gibraltar, which is mentioned in one of them, our future relations with the EU or the withdrawal deal itself. We discussed last week, as a number of noble Lords have said, the need for a meaningful vote by Parliament on the deal and indeed on what should happen if the deal fails to win approval by the British Parliament. We also considered then the desire of some for a future referendum on the terms of the deal.

As the Committee knows, and as the noble Lords, Lord Wigley and Lord Newby, have said, we see it as essential that there is a proper, meaningful vote on the terms of our withdrawal. We trust that the amendment we will table on Report will find favour in this House and later, we hope, at the other end. As to what should happen if that deal is rejected, surely that must be decided at the time, in the full knowledge of the situation, by the House of Commons. It could be, as in a later amendment in the name of my noble friend Lord Campbell-Savours, by extending the Article 50 period. It might be by revoking the Article 50 notification. It could indeed be by a referendum, though perhaps the wording would be a matter for then, rather than by amendment today. But the first judgment on the terms must surely be for this sovereign Parliament and, if it says no, it must then be Parliament that takes responsibility for what should be the next step. That means nothing is ruled out, which therefore means nothing is set in stone at this moment.

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

My Lords, this has again been an excellent debate and let me say at the outset that I note that support for the amendments comes from noble Lords on all sides of the House. I am not trying to imply that this is a partisan issue, but it is one of principle. I hope that the noble Lord, Lord Butler, the noble Baroness, Lady Wheatcroft, and the noble Lords, Lord Newby, Lord Wigley and Lord Foulkes, who have tabled Amendments 226, 227BH and 357, will believe me when I say that I respect their positions. But this debate has been held many times before, and I therefore hope that noble Lords will forgive me if my argument sounds familiar. The referendum question, agreed by Parliament and presented to the people, was whether we wished to leave or remain in the European Union. Parliament attached no conditions or caveats to that vote.

It was clear in the campaign that a leave vote could lead to a range of outcomes and that not all of us advocating leave agreed about the way to do so. People knew this at the time, it was extensively debated and, in the biggest democratic mandate for a course of action ever directed at any UK Government, voters instructed the Government to leave the European Union.

--- Later in debate ---

[Lord Callanan]

I am not an expert on the proceedings of the other place—I have never been a Member of the House of Commons—but of course the Government will listen to decisions by the House of Commons.

[Baroness Hayter of Kentish Town]

My Lords, this is a crucial moment. The whole issue here is whether it is a mere Motion or whether there is any legislative oomph—sorry, Hansard—behind the vote that Parliament is to have. Am I absolutely correct that the Minister has just said that even if it is a mere Motion, which is what the Government have offered so far, if the deal was rejected they would still take us out of the European Union at the cliff edge, without a deal?

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 7th sitting (Hansard): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Inglewood]

Not immediately.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, as my noble friend Lord Monks said, we in Parliament appear at the moment to be mere spectators, highly dependent on the Government to negotiate on our behalf—indeed, on behalf of future generations—an agreement with the EU as to how we withdraw from nearly half a century of membership and, more seriously, how we work with and alongside the EU in the decades to come: the canvas, or the mandate, in the words of my noble friend Lord Lea.

It is to this latter task that Amendment 144 and its amendments draw our attention. At the moment, the Government are telling us nothing as to the shape of the agreement they wish to reach. “Deep”? “Bespoke”? Those words tell us nothing. What does it mean in regard to family law; our highly profitable creative industries; the protection of consumers, especially in food safety or transport—those trains, planes and ships that carry people and goods from here to there every hour of the day? How does it affect our artistic, sporting and other professionals, who are currently able to work across the EU, representing British companies or citizens, competing, performing or conducting architectural, veterinary or scientific work across that enormous market, or undertaking accounting or auditing work for multinationals? Indeed, a whole range of jobs are currently undertaken day by day by virtue of the IP agreements, broadcasting licensing or the mutual recognition of qualifications, which my noble friend Lord Brooke set out so clearly. Negotiations are needed on those areas.

--- Later in debate ---

Moved by

[Baroness Hayter of Kentish Town]

150: Clause 9, page 7, line 9, at end insert—
“( ) The statute provided for by subsection (1) must include the terms of the withdrawal agreement and make provision for any transitional arrangements which have been negotiated within or alongside the withdrawal agreement.( ) In addition to the statute provided for by subsection (1), the Minister of the Crown must, as a further precondition of making regulations under subsection (1), seek interim approval for the withdrawal agreement by means of motions in both Houses of Parliament, with such motions to be voted on, so far as practicable, before the European Parliament votes on the withdrawal agreement.”

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords, I move Amendment 150, which also appears in the names of the noble Lords, Lord Wallace of Saltaire, Lord Hannay, and Lord Patten, and shall speak more broadly about the objective which, in the mix, these various amendments seek to achieve.

Amendment 150 is perhaps the most modest in the group. It would put into statute the Prime Minister’s promise that the withdrawal agreement would be voted on in both Houses, before a similar—albeit more serious—vote in the European Parliament. Why “more serious”? It is because the European Parliament has to agree the deal or it can go no further. MEPs have a veto, whereas a mere Motion in either or both Houses this side of the water would have no statutory force.

In theory—in law, if not in politics—either or both Houses could say “nay” and the Prime Minister could still say “yea” and sign up. Or the Prime Minister could even, for whatever reason, fail to table a Motion in either or both Houses. We should at the very least write this into law. But the truth is that we must go further than this, along the lines suggested in other amendments, such as that in the name of my noble friend Lord Liddle.

Our amendments cover three specific areas: first, approval by Parliament of the draft withdrawal Bill, prior to the European Parliament vote, plus a procedure for the Commons deciding what to do should our Parliament decline to approve; secondly, approval by Parliament of the final agreement, including the framework for our future relationship and the transition arrangements, plus a procedure for the Commons to decide what to do if Parliament declines approval; and finally, preventing the Government walking away from the talks with no deal without the consent of Parliament and enabling the Commons to decide what should happen if MPs disagree with the Government.

In case anyone thinks that the no-deal scenario has gone away, just last week the Foreign Secretary was still saying that leaving without a deal holds no terrors and that the UK would do very well on World Trade Organisation terms, despite everything we hear from manufacturers and exporters about duties and red tape, the possibility of border posts in Ireland, and of Calais facing 30-mile tailbacks with potential food shortages if we end up with mandatory customs and sanitary checks at the French ferry terminal. Parliament must keep the Government’s feet to the fire and ensure more sensible judgments than Mr Johnson’s guide to negotiations.

It is not just this side of the Committee, nor the various noble Lords who have put their names to the amendments in this group, who want the outcome of the Government’s negotiations to be put to Parliament for endorsement. John Major, who knows a thing or two about negotiating treaties as well as about Parliament, has said that there,

“must be a decisive vote, in which Parliament can accept or reject the final outcome or send the negotiators back to seek improvements, or order a referendum … That is what parliamentary sovereignty means ... No one can truly know what ‘the will of the people’ may then be. So, let parliament decide”.

I might not quite share his view about a referendum, but I do share his view that it is for Parliament, not the Government, to decide on the outcome of the negotiations. That is what the sovereignty of Parliament is all about and it is vital on this issue because of its long-term implications. We need to ensure that the Government, at every stage of the way, remain very aware that it is not just the divided views in the Cabinet that must be satisfied, but Parliament on behalf of the people.

During the Article 50 Bill, this House voted overwhelmingly for a “meaningful vote” for Parliament. We will ensure that this demand is put into this Bill. I hope the Minister will give an undertaking that the Government will accept an amendment on Report to make that demand a reality. I beg to move.

[Lord Wallace of Saltaire]

My Lords, my name is to this amendment. I think most of us would agree that Clause 9 as it stands is simply not fit for purpose or constitutionally acceptable. It leaves it to Ministers to decide and implement whatever our divided and chaotic Government have by then asked for and managed to negotiate with the rest of the EU. I find it astonishing that the Government have failed to set out their negotiating preferences 18 months after the referendum and 12 months before the proposed exit day.

In six days in Committee we have had a process of discovery about the number of issues on which the Government do not have a coherent view. The noble Lord, Lord Callanan, has argued that the Government are protecting their negotiating position. It seems to me they are rather protecting their nakedness on much of it as they do not have a coherent position. In the speech he just made he said that they do not want to have their negotiating position constrained. The Government have themselves produced a number of red lines that constrain their negotiating position. Parliament must be allowed to constrain their negotiating position in other ways. Every day in Committee and on almost every subject we discover more issues that are important to Britain’s prosperity and security on which the Government remain confused and unclear about what their preferences are.

The Prime Minister’s speech the other week was a major step forward. She moved to recognise that we need to maintain in a number of areas that she specified—but only a few—close relations with the European Union. The Luxembourg Prime Minister’s comment on her speech was entirely appropriate: the United Kingdom now intends to move from a position where it is inside the EU with a number of opt-outs to one in which it is outside the EU with a large number of opt-ins. Parliament would wish to have a view on that. What we heard in the first debate this morning was: how many of these opt-ins do the Government wish to have? They must have a view on that and they ought to share it with Parliament. They need to share it with their European Union partners. It is not a negotiating position on which we wish to maintain flexibility.

Given all of that, it is all the more important for Parliament to have a meaningful and coherent vote on a package—or the absence of one—well before the prescribed exit date is reached. That is what Amendment 150 and the others in this group talk about, in one way or another. The Government seem to be more concerned about negotiations within the Conservative Party than with the long-term national interest of the country. We parliamentarians, in both Houses, therefore have to be the guardians of the national interest, and that requires substantial changes to Clause 9.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Callanan]

Of course, I would be delighted to do so.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we have to thank the Minister for his wisdom, his humour, his tolerance—but. One thing with which I agree with the Minister, on which I think I heard him right, is that he appreciates, which I have certainly felt, that there is clear support in Committee for a meaningful vote on the withdrawal deal, or indeed, on no deal. I do not know whether that will be the scorched earth, referred to by the noble Lord, Lord Lisvane, or the absence of a package, suggested by the noble Lord, Lord Wallace, but I think we know what we mean by “no deal”.

The question is: what is meaningful? If it is, as I said earlier, a mere Motion, with no statutory force, that surely is not meaningful. But it is not meaningful if it is not timely; in other words, if we do not have it early enough for it to make a difference. I think the noble Lord, Lord Wigley, asked whether it would be a case of like it or lump it. If so, I do not think that would work in either House. Indeed, I was quite concerned at one point when the Minister seemed to say that, if Parliament voted no to the deal, then we would come out without a deal. That is not what some of the amendments in this group want, and we do not want the outcome that if we vote down what there is, we will get the worst of all worlds. We want to put power back into the Commons, so if the decision is that the withdrawal deal will not do, it would be for the Commons to decide what to do about that. Also, the vote needs to be meaningful in that it should influence the choices that the Government will be making, as my noble and learned friend Lord Falconer said. That is the point. Knowing they have to come here for a deal will affect what happens in the negotiations, so the outcome will be influenced by a vote here.

It is absolutely clear from what everyone has said that it is for Parliament to endorse, or otherwise, the outcome, which is why I am not tempted by my noble friend Lord Adonis’s desire for a referendum. I remind him that it was a referendum that got us into this mess in the first place, but that is not the reason. The reason is that, like other speakers, I want to reassert parliamentary sovereignty. That is why we will try to bring back an amendment on Report that will ensure that, if Parliament gives the thumbs-down to the deal, it would be the Commons and not the Government that decides what happens next.

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[Baroness McIntosh of Pickering]

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

[Baroness Hayter of Kentish Town]

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

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

Amendment 150 withdrawn.