European Union (Withdrawal) Bill

Viscount Waverley Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Adonis]

We need these amendments because we simply do not trust the Government to have an adequate parliamentary procedure in place unless Parliament exerts itself in advance. That is why the amendments of the noble Viscount and the noble Lord, Lord Wigley, which discuss time, are so important.

I want to highlight two issues in respect of the procedure that we need to follow when the Prime Minister submits the withdrawal treaty to Parliament. First, there must be adequate time for Parliament to debate it, because there can be no democracy unless there is time to discuss it. We should remember that Clement Attlee famously said that democracy is government by discussion, but this Government are very keen on closing down discussion. Your Lordships and the other place need to put in place arrangements to ensure that there will be adequate time. To my mind, those arrangements are crucial. At the moment in the existing Clause 9, even as amended by Dominic Grieve’s amendment in the House of Commons, there is no requirement in respect of the time that must be given to Parliament to reach these momentously important decisions. That needs to be put right.

[Viscount Waverley (CB)]

When the noble Lord talks about timing and Parliament, is he also anticipating that Select Committees will be given time to consider their issues and report back to the House so that Parliament can consider the appropriate course?

[Lord Adonis]

The noble Viscount raises a very important issue which has not been debated in either House of Parliament at all so far—whether there should be a Select Committee procedure when the withdrawal treaty is presented. That is exactly the kind of issue we should be discussing, and not at one o’clock in the morning.

The second issue, which goes to the heart of the bona fides of the Government, is the options that Parliament will debate and reach decisions on when the withdrawal treaty is presented. The Prime Minister has said repeatedly—indeed, the Minister has repeated it—that the only option that Parliament will be given when the treaty is presented is between accepting the treaty or rejecting it and leaving without a treaty on World Trade Organization terms. That is a completely false, misleading and unacceptable statement of what the options facing Parliament should be. Parliament, which is sovereign, can and should itself decide what options will be available to it. An absolutely credible option—indeed, in my view it is the most credible option facing the country—is that we simply stay in the European Union. The idea that this sovereign Parliament will not be allowed to consider that as an option is totally unacceptable. There obviously should be an option. The reason why we need to enshrine that as an option, as other noble Lords have said, is precisely that the Government, by executive fiat, are seeking to rule it out. That is unacceptable.

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[Lord Adonis]

We are debating these issues precisely because of the referendum. However, the referendum is not the last word on parliamentary democracy; nor is it the last word, crucially, on a treaty which the people did not even see two years ago when they voted. They could not see it because it had not been negotiated.

[Viscount Waverley]

Would the noble Lord wish to encourage the Minister to comment on the effect on timing if the ECJ makes a ruling in relation to the rights of UK citizens, inasmuch as we will still be citizens of the European Union and that ruling may come during the transition period or the implementation period that will be announced after the agreement has been agreed to?

[Lord Adonis]

Perhaps the Minister may say more about this when he replies. Given the complexity and difficulty of these negotiations, it is perfectly possible that the withdrawal treaty will not be submitted until quite late. I would not be surprised if we do not see the withdrawal treaty this side of Christmas, so it will not be a long period. If the withdrawal treaty is presented late, the Government should seek an extension of the Article 50 period so that there is adequate parliamentary scrutiny, debate and opportunity for decision on that treaty. If the Government were serious about respecting the sovereignty of Parliament, the Minister would announce that there will be at least a three-month period between the submission of the withdrawal treaty and the expiration of the date on which we leave the European Union.

I know he will not give that statement because we all know what he seeks to do. He is an ardent Brexiteer and he simply wants us out, come what may, on 29 March next year. He is not worried about parliamentary processes or democracy; he is one of that group of far-right nationalists who simply want us out. Our job is to see that Parliament is respected and that it is the British people and their parliamentary representatives who take this decision, but they cannot do that if they do not have adequate time to debate it.

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[Lord Reid of Cardowan]

A much wiser and older head than me, Merlyn Rees, once told me that, when listening to a Minister’s replies, I should forget everything before the “but”; I include in that everything before the “however”. What follows the “however” gives the Government executive powers to take a course of action completely opposite to the amendments that say that a vote should be done before the European Parliament votes. Of course the Government do not control the timetable for the European Parliament, but they control the timetable for this Parliament. We are asking for the vote to be given substance and time—rather than being a theoretical meaningful vote—as well as an assurance that the decision will be taken by this Parliament before we have to sit and watch the European Parliament voting on the deal. Can the Minister address that issue and explain to us why it is impossible to do that simple thing?

[Viscount Waverley]

Before the noble Lord sits down, will he pass comment about not just the European Parliament but the EU national parliaments? Will they have a yes or no, or ask their Governments to go back to the Council to keep at it?

[Lord Reid of Cardowan]

Let us take it one step at a time.

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[Lord Callanan]

Everything I say is meaningful. Although we can look again at elements of the power, we will not be removing it from the Bill in its entirety, as Amendment 194, tabled by the noble Lord, Lord Adonis, who I am glad to see is still with us, would have it.

It is prudent to keep Clause 9 as part of this Bill. We do not yet know the shape or the outcome of future negotiations. It is crucial that we have the necessary legislative mechanisms available to us to fully implement the withdrawal agreement in time for exit day. There may well be a number of more technical separation issues which will need to be legislated for, depending on the shape of the final agreement. It is long established that where legislation is intended to make smaller, more detailed changes, secondary legislation can be an appropriate vehicle. It is also not uncommon for the principles of an international agreement to be implemented through secondary legislation.

Let me give an example. The Nuclear Installations (Liability for Damage) Order 2016 implements the 2004 protocol to the Convention on Third Party Liability in the Field of Nuclear Energy—a matter with which I am sure noble Lords are fully familiar.

To be clear, however, Clause 9 is not intended to implement major elements of the withdrawal agreement. I understand that this distinction might seem a little abstract so I will demonstrate with a few more illustrative examples, although with the caveat that we cannot know for certain until the withdrawal agreement has been finalised. Clause 9 may be required, for example, to legislate for the position of ongoing administrative proceedings when we leave the EU. This is a broad basket of more technical issues such as proceedings on competition and antitrust under regulation 1/2003 or procedures on the concentration of undertakings/mergers under regulation 139/2004. These are quite complex, technical issues that do not need to be put into any Bill but must be legislated for.

Another area that Clause 9 could be used for relates to the privileges and immunities afforded by the UK to the EU, its institutions, bodies and staff post exit. These are a standard feature of international law and are generally considered necessary for the proper functioning of international organisations. Privileges and immunities for the EU are currently implemented under protocol 7 of the Treaty on the Functioning of the European Union. After exit, the EU will continue to require privileges and immunities to cover any functions that it has during the implementation period or for winding down its existing operations, and our agreement on privileges and immunities will need to be implemented in domestic legislation. If noble Lords would like further detail, I encourage them to consult the Hansard record of Committee in the other place where further details were offered on potential examples.

I do not need to remind noble Lords, particularly the noble Baroness, Lady McDonagh, that the amendment to Clause 9 that was approved in the other place means that the clause can be used only subject to the prior enactment of a statute by Parliament approving the final terms of the withdrawal of the UK from the EU. That is an exceptional check on the power, and of course we stand by that.

I have been left in no doubt of the strength of feeling in the House about Clause 9. As with other contentious areas of the Bill, I look forward to meetings and discussions with noble Lords to see what can be done ahead of Report. With that in mind, I hope noble Lords will not pursue their amendments.

[Viscount Waverley]

The Minister referred to the CRaG procedure. He may not be aware that the House of Commons put out an Explanatory Note on many of the issues that we are discussing today. I would like to ask his opinion on a line from it:

“Either House could also use the CRAG procedure to object to ratification of the agreement, and in the case of the Commons, indefinitely block it”.


Would he care to comment?

[Lord Callanan]

If the noble Viscount will forgive me, I have not read the details of that. I am sure his quote is accurate but I would like to read the whole thing before I comment on it in detail.

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[Lord Callanan]

There are some technical provisions that we may want to use Clause 9 to implement, subject to the provisions of Amendment 7. There is also the political imperative that the House of Commons considered this matter closely and decided to keep Clause 9 in the Bill, albeit modified. We want to respect the will of the House of Commons.

[Viscount Waverley]

Will the noble Lord write to me on the particular issue he raised on the CRaG procedure for the record?

[Lord Callanan]

Of course, I would be delighted to do so.